Buchanan v. Davis

• Citation: 300 S.W. 985
• Decision Date: 10 November 1927
• Docket Number: (No. 2060.)
• Parties: BUCHANAN et al. v. DAVIS et al.
• Court: Court of Appeals of Texas

300 S.W. 985

BUCHANAN et al. v. DAVIS et al.

(No. 2060.)

Court of Civil Appeals of Texas. El Paso.

November 10, 1927.

Rehearing Denied December 15, 1927.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit by Loleta Davis and others against W. M. Buchanan, individually and as independent executor under the will of Ophelia B. Buchanan, deceased, and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Robert Thompson and Chas. F. Greenwood, both of Dallas, and John B. Howard, of El Paso, for appellants.

Coates & Mastin, of Fort Worth, for appellees.

WALTHALL, J.

On August 3, 1917, Mrs. Ophelia B. Buchanan formally executed what purports to be, and what we will refer to as, her last will and testament. On the 20th day of August, 1917, Ophelia B. Buchanan departed this life, and on November 6, 1917, said will was duly admitted to probate in Dallas county, Tex., and no appeal was taken therefrom. On October 9, 1924, appellees, heirs at law of testatrix, plaintiffs below, Loleta Davis, joined by her husband, Frank Davis, A. J. Buchanan, for himself and as next friend of Milton Buchanan, a minor, and C. P. Buchanan, brought this suit in the county court of Dallas county against Orville Buchanan, Mrs. Robert Thompson, and her husband, Robert Thompson, Billy B. Odom, a minor. Cleland Buchanan, Clyde Buchanan, and W. M. Buchanan. The last named sued individually and as independent executor under the said will, praying that the said will be denied probate; that all orders, decrees, and judgments entered in connection with the probate of said will be revoked, canceled, and annulled; that by reason of the matters alleged it be adjudged that said will is not the last will and testament of said Ophelia B. Buchanan, deceased. The suit was concluded in the county court and judgment entered that plaintiffs take nothing by their contest, and that defendants go hence without day. Plaintiffs gave notice and duly perfected an appeal to the district court of Dallas county for the Fourteenth judicial district.

In the district court the case was tried with a jury on plaintiffs' first-amended original petition, and the several answers of defendants, and submitted upon special issues, resulting in a verdict and judgment in favor of plaintiffs below, appellees here.

Without stating the pleadings at this time, the issues submitted indicate the issues tendered by the pleadings, and upon which proof was offered. In answer to the issue 1, submitted, the jury found that Ophelia B. Buchanan, at the time she executed the instrument in writing, of date August 3, 1917, did not have testamentary capacity, as that term is defined in the court's charge; and in answer to issue 2, the jury found that the said instrument was procured through undue influence exerted upon Ophelia B. Buchanan by W. M. Buchanan, as the term undue influence has been defined to the jury in the court's charge.

Judgment was entered on the verdict for the plaintiffs, from which defendants prosecute this appeal.

Opinion.

The amended petition discloses that the relationship of the parties to this suit is substantially as follows: Ophelia B. Buchanan, the then widow of A. J. Buchanan, deceased, with three children, namely, Will, C. P. (Clarence), and A. J. (Jack) Buchanan, married her kinsman, a widower, W. M. Buchanan, with two children, namely, Cleland and Clyde. To this marriage were born to them a girl, Olive, and a son, Orville. Olive married ____ Odom, and to them was born Billie B. Odom, and at the time of this action Olive had married Robert Thompson. Prior to the death of Ophelia B. Buchanan, her son Will had died, leaving two children, namely, Loleta, who married Frank Davis, and the minor, Milton Buchanan. This suit was brought by the children and grandchildren of Ophelia B. Buchanan by her first marriage against their stepfather, W. M. Buchanan, individually and as independent executor under the will and against the stepchildren of decedent and the children of the marriage of their mother with W. M. Buchanan.

From the averments in the petition it is made to appear that all the heirs at law of Ophelia B. Buchanan, deceased, and all persons named in the will, were before the court. On the matters in controversy between the parties, and brought forward here, the petition alleges, in substance:

"That less than four years from the filing of plaintiff's original petition have elapsed since plaintiffs became aware of the allegations contained in this paragraph [of the petition, paragraph 7], and that they could not by the use of ordinary diligence have learned sooner the true facts as alleged herein."

It is unnecessary to state the contents of the will admitted to probate as no issue is made here as to the validity of the will on account of its form, or any of its provisions. The will makes bequests to each of the contestants, and each contestant alleges and the evidence shows that he or she has not taken or accepted under the will, and that decedent left an estate in which contestant plaintiffs are interested.

Appellants, defendants below, file separate briefs and submit numerous separate and distinct assignments and propositions. The division of parties in briefing might be designated as the Buchanan appellants, and the Thompson appellants, should it be necessary to refer to them separately.

Under the first proposition common to all defendants, the jurisdiction of the district court and of this court is brought in question. The will was probated November 6, 1917, and no appeal was taken from the order probating the will. The suit to set aside the order probating the will was filed on October 9, 1924. The cause was heard in the county court on July 29, 1925, at which trial it is insisted that certain pleas and exceptions of defendants were sustained, but no such final judgment rendered therein from which an appeal to the district court would lie, said county court not having rendered a final judgment disposing of the merits of the case, no appeal to the district court would lie, and that, by reason thereof, the district court did not obtain jurisdiction by the appeal.

The judgment in the county court, after reciting the service of citation upon each of the contestee defendants, states:

"And then came on to be heard the defendants W. M. Buchanan and Orville Buchanan's plea in abatement as contained in their answer herein filed, * * * in which it is alleged that the plaintiffs' action is one seeking to set aside and annul the previous orders of this court wherein the will of Ophelia B. Buchanan was admitted to probate more than four years prior to the filing of the plaintiffs' original petition in this cause; and came on to be heard the special exceptions of the defendants Mrs. Robert Thompson (formerly Mrs. Olive Odom) and her husband, Robert Thompson, and Billy B. Odom, through Mrs. Robert Thompson, his next friend, as contained in their answer herein filed on the 3d day of November, 1924; and after the argument of counsel, it appearing to the court that this suit is one contesting the will of one Ophelia B. Buchanan (then reciting other matters not necessary to state, the judgment proceeds), it is, therefore, the opinion of this court that the defendants W. M. and Orville Buchanan's plea in abatement should be sustained, more than four years having elapsed after the said Ophelia B. Buchanan's will was probated before this action was filed, and that the special exception No. 1 of the defendant Mrs. Robert Thompson (as above, failure to make parties) be sustained (stating reasons for sustaining the exception, purchasers of property of the estate not made parties), and the plaintiffs now here refuse to make said purchasers parties, and the court finds that they are necessary parties to this action; and that the special exception No. 4 of the answer of the defendants (the Thompson defendants, statute of limitation of four years) should be sustained. * * * It is therefore ordered, adjudged, and decreed by the court that the plaintiffs take nothing by their contest and that the defendants go hence without day, and that they recover of the plaintiffs their costs in this behalf. To all of which the plaintiffs in open court excepted and gave notice of appeal to the district court of Dallas county, Tex., for the Fourteenth judicial district of Texas."

The court, by order, fixed the appeal bond. The county court did not try the case on its merits, and made no order dismissing the case on sustaining the plea and exceptions, and the plaintiffs, refusing to amend or make parties, but entered judgment as above that plaintiffs take nothing by their contest and that defendants go hence without day. The appeal was taken from the judgment as above to the district court, the appeal perfected, and the district court entertained jurisdiction and tried the case on its merits, from which district court judgment this appeal is prosecuted.

The plea and the exceptions having been sustained, and, there having been no trial on the merits, the county court judgment should have been one of dismissal, thus finally disposing of the cause, had there been no leave to amend, and no amendment to the petition made and had. The court concluded to finally dispose of the case on his ruling on the plea and exceptions. The rulings of the court on the plea and exception were, at that time, interlocutory; were not "the awarding of the judicial consequences which the law attaches to facts." Hanks v. Thompson, 5 Tex. 6; Bradshaw v. Davis, 8 Tex. 344; Texas Land & Loan Co. et al. v. Winter, 93 Tex. 560, 57 S. W. 39.

With no rulings except those sustaining the plea and exceptions, there would be no final judgment, and the case left in suspense, depending upon such order as the court might thereafter make.

The question presented here is not a question of the correctness of the court's ruling on the plea and exceptions, nor what order should have been entered,...