City of Ranger v. Gholson, 2005.

• Decision Date: 12 April 1940
• Docket Number: No. 2005.,2005.
• Citation: 141 S.W.2d 396
• Parties: CITY OF RANGER et al. v. GHOLSON et al.
• Court: Texas Court of Appeals

141 S.W.2d 396

CITY OF RANGER et al. v. GHOLSON et al.

No. 2005.

Court of Civil Appeals of Texas. Eastland.

April 12, 1940.

Rehearing Denied June 7, 1940.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Suit by the City of Ranger against Howard R. Gholson, administrator, and another, to recover on certain paving certificates and to foreclose the lien thereof. The Real Estate Land Title & Trust Company, trustee, filed what it denominated a plea of intervention. Subsequently the Land Title Bank & Trust Company, trustee, formerly the Real Estate Land Title & Trust Company, filed what it denominated an amended plea in intervention, wherein was alleged for the first time a cause of action based on a mechanics' lien contract executed by John M. Gholson and wife. The pleas in intervention were struck out on motion, but the Land Title Bank & Trust Company was permitted to refile the stricken pleadings. From a judgment in favor of defendant, the plaintiff and intervener appeal.

Affirmed.

Earl Wyatt, of Amarillo, for appellants.

Levy & Evans, of Fort Worth, for appellees.

LESLIE, Chief Justice.

The City of Ranger, a municipal corporation, instituted this suit against Howard R. Gholson, administrator, and Mrs. John M. Gholson, to recover on the obligations of paving certificates and to foreclose such liens. From a judgment in favor of the defendants the plaintiff and an intervener appeal. The court filed findings of fact and conclusions of law.

The parties will be referred to as in the trial court.

The original petition was filed by the City of Ranger July 5, 1934, and it alleged fully the origin and nature of the obligations in suit and the fact that such indebtedness was owned by the Real Estate Land Title & Trust Company, Trustee, "as owner and holder of said certificates * * *"; that plaintiff had been "requested to exercise its charter powers to enforce the payment of the amount due thereon as aforesaid and suit has been instituted thereon * * *", including "reasonable attorney's fees" stipulated for and alleged to be $250. The cause of action was presented strictly in behalf of the Trust Company and based solely on the obligations arising out of the paving assessments, etc.

The same date, July 5, the Trust Company filed what it denominated a plea of intervention. This pleading referred briefly to the plaintiff's original petition, adopted the allegations of the same, and claimed the benefit of any recovery that might be had thereon. Its prayer was that "judgment be rendered in this cause in favor of the City of Ranger * * * for the use and benefit of the intervener * * *."

Thereafter, on September 20, 1937, the Land Title Bank & Trust Company, Trustee (formerly the Real Estate Land Title and Trust Company), filed what it denominated an "Amended Plea in Intervention." In the first division thereof it alleged, in substance, the same cause of action and the only one presented in the plaintiff's original petition, namely, one based on the assessments, ordinance and paving certificates, etc. In addition to the re-statement of such original cause of action, the Land Title Bank and Trust Company, Trustee, for the first time, alleged a cause of action based upon a mechanics lien contract executed by said John M. Gholson and said wife on March 8, 1928. By this contract the Gholsons agreed to pay W. E. Burke, or his assigns, the "sum as evidenced by said certificates" etc. The indebtedness evidenced by the paving certificates accrued as per ordinance as of July 17, 1928. The "obligations" covered by the mechanics lien contract were alleged to be "cumulative of such assessments and certificates * * *."

From July 5, 1934, when plaintiff's original petition and the first plea in intervention by the Trust Company were filed, down to January 10, 1939, the cause remained upon the docket of the 91st District Court of Eastland County. On the last named date the judge of the 88th District Court, sitting for the 91st District Court, discovering the disqualification of the judge of the 91st District Court to try the case, transferred the cause to the docket of the 88th District Court. During the pendency of the cause in the 91st District Court, the judge of that court was related within the prohibitive degree to the defendants, thereby preventing his making any valid orders pertaining to the cause. During this period of time the pleas in intervention appear to have been filed. About March 2, 1939, the defendants made a motion to strike both pleas in intervention on the ground that they had been filed without permission of a judge qualified to grant such permission for the above reasons. After the respective litigants filed pleadings defining such issue, the trial court (88th District Court) on March 3, 1939, struck out, for the reasons given, the pleas in intervention filed, respectively, July 5, 1934, and September 20, 1937. To this action of the court no exception was taken by the intervener, Land Title Bank and Trust Company, but it immediately requested the court's permission to refile in that court the pleadings stricken out. The court granted such permission, and the pleading was re-filed as of March 3, 1939.

Certain issues presently to be considered must determine the intervener's right on this pleading filed as of that date (March 3, 1939). In the meantime, the defendant, Mrs. John M. Gholson, presented her defenses alleging non-liability under the assessment and paving certificate, coverture, homestead, limitation of two and four years. Howard R. Gholson, individually and as administrator, answered by general demur...