Brown v. Rentfro

• Court: Texas Supreme Court
• Citation: Brown v. Rentfro, 57 Tex. 327 (Tex. 1882)
• Decision Date: 13 June 1882
• Docket Number: Case No. 3143.
• Parties: JAMES T. BROWN ET AL. v. LUCRETIA RENTFRO ET AL.

57 Tex. 327

JAMES T. BROWN ET AL.

v.LUCRETIA RENTFRO ET AL.

Case No. 3143.

Supreme Court of Texas.

Jun. 13, 1882.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

James T. Brown, in his own right and as next friend and natural guardian of his minor children, James Brown and William H. S. Brown, brought this suit against appellees June 27, 1873, to vacate and set aside a decree theretofore rendered in a certain cause No. 3056, styled Lucretia R. Brown v. James T. Brown. The case made is in effect this: James T. Brown and Lucretia R. Rentfro (then Brown) were husband and wife, and owned and occupied as their homestead lots 5, 6, 7 and 8, in block 173, city of Austin, which was their community property. Brown conveyed a portion of these lots to his daughter Martha J., and January 10, 1871, Mrs. Brown brought suit to cancel that conveyance. Pending that suit Mrs. Brown sued her husband for a divorce. March 4, 1871, they entered into an agreement concerning the property in case the divorce was granted. On March 7, 1871, three days afterwards, the two causes were consolidated, the case was tried, and a divorce granted to Mrs. Brown. The court thereupon rendered a decree disposing of the custody of the children and the property in accordance with the terms of the agreement, the effect of which was to divest all right and title to the property out of James T. Brown and vest the same in the parties named in the agreement.

Brown claimed that he was insane at the time the agreement was made; that he continued so insane for more than one year thereafter, and prayed that the decree, so far as it affected the question of property, be vacated and annulled. Both in the original and amended petitions there were numerous allegations to the effect that Mrs. Brown had married again and had abandoned the minors James and William, followed by prayers for relief in behalf of the minors. The court sustained exceptions to this branch of the case and dismissed the same as to the minor plaintiffs.

March, 1875, the cause was tried, and resulted in a verdict in favor of appellant, but upon motion the court rendered a judgment in favor of appellees confirming the former decree. From that judgment this appeal was taken by Brown. The error relied on is that the court erred in rendering judgment in favor of appellees when the verdict was in favor of appellant.

N. G. Shelley and James B. Morris, for appellants.-- . . Had the court power to enter the judgment which was a legal sequitur of the verdict. We contend that it had. Newsom v. Chrisman, 9 Tex., 113;Smith v. Smith, 11 Tex., 106; Milton T. Caperton v. Joseph Wanslow, 18 Tex., 125, where the power of the court is clearly announced. But appellees say that the case of Cannon v. Hemphill, 7 Tex., 187, is analogous to this. This statement is clearly wrong. In that case Judge Hemphill said that the agreement became the judgment of the court, and then he discussed the question elaborately as to whether or not appellees had shown any legal cause for vacating the judgment, and decided the same in the negative. In this case Brown could not have been divested of title to all the lots, had it not been for the agreement. See Pasch. Dig., 3452. And thus it was that the agreement was set out in full so particularly in the judgment, and the idea kept so prominent that the agreement was the foundation of the judgment. The judgment, as it divested Brown of title, is invalid on its face unless Brown's consent thereto is also shown. This consent is shown by the agreement. With this distinction drawn, we will say with Judge Hemphill, that the agreement was merged into the judgment; and just here all semblance of parallel between this case and that of Cannon v. Hemphill ceases. In that case the court expressly held that the judgment could have been avoided upon sufficient proof of fraud, collusion, etc., and then says that they failed in the proof. Now, in this case we attacked the judgment because of Brown's insanity when he signed the agreement which was the basis of the judgment. If he was insane on March 4, 1871, when he signed the agreement, he was also insane at the date of the judgment, three days afterwards, because insanity once established, continues until the contrary is proven. 2 Dan. Ch. Pr., p. 991; 2 Greenl. Ev., secs. 689, 690. This law was properly announced to the jury by the court, and when the jury announced Brown's insanity, on March 4, 1871, as a legal sequitur, in the absence of proof to the contrary, which does not exist, the court rendered judgment against a lunatic, who had no guardian or next friend in court, on March 7, 1871. And said judgment was void as against the lunatic. 1 Dan. Ch., p. 202??

Dowell & Church, also for appellant.--This is not a case in which a judgment non obstante veredicto can be rendered. A judgment non obstante veredicto is never rendered for the defendant, but only for the plaintiff where the defendant has plead in confession and avoidance, and is frequently called a judgment as upon confession. Stephen on Pleading, 7th ed., pp. 96, 97, says: “““If the verdict be for the defendant, the plaintiff in some cases moves for a judgment non obstante veredicto…. This motion is made in cases where, after a pleading in confession and avoidance, as, for example, a plea in bar and issue joined thereon and a verdict found for the defendant, the plaintiff, on a retrospective examination of the record, conceives the plea was bad in substance and might have been made the subject of a demurrer on that ground.” “““For, the plea being bad, the confession still stands and authorizes the judgment.” Caruthers' Hist. of a Law Suit, p. 262, sec. 400; Tidd's Practice, secs. 920-922; Cro. Eliz., 214; 1 Salk., 173; 8 Tarrant, 413; 3 Barn. & Ald., 702; also Hays v. Stone, 36 Tex., 185. It is clear from these authorities that a judgment non obstante veredicto is always upon the merits. It is a judgment based upon and authorized by the confessions of the defendant, which show the right of the plaintiff to recover in the way in which he sues. This case contains no such facts. The defendants denied and contested every point in plaintiff's case.

Walton, Green & Hill, for appellees.-- … It is not denied that ordinarily the judgment of the court must follow the verdict, and that if the court is not willing so to order, a new trial or arrest of judgment must be awarded. But this rule is not universal. It applies to cases wherein the verdict is rendered upon a material issue; for, if the verdict be rendered upon an immaterial issue, it is treated as a nullity. Thus, in Brewer v. West, 2 Tex., 377, Justice Lipscomb, commenting on a very similar case, remarks: “The answer setting up no defense, presented no issue to the jury, and ought therefore to have been treated as a nullity by the court, and stricken out, if not demurred to;” wherefore the verdict in that case was held could not avail the defendant; and so, in Hays v. Stone, 36 Tex., 186, it is said: “The issue tendered was wholly immaterial, and all other defenses being withdrawn, the plaintiff was entitled to a decree non obstante veredicto;” and commenting on Brewer v. West, it is remarked...