Cole v. Wadsworth

• Decision Date: 20 February 1964
• Docket Number: No. 28,28
• Citation: 376 S.W.2d 13
• Parties: Mildred Scripture COLE et vir, Appellants, v. W. H. WADSWORTH et al., Appellees.
• Court: Texas Court of Appeals

Page 13

376 S.W.2d 13

Mildred Scripture COLE et vir, Appellants, v. W. H. WADSWORTH et al., Appellees.

No. 28.

Court of Civil Appeals of Texas, Tyler.

Feb. 20, 1964.

Rehearing Denied March 12, 1964.

Leon A. Smith, E. D. Hurt and Esir Tobolowsky, Dallas, for appellants.

Wm. Andress, Jr., L. E. Elliott, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellees.

DUNAGAN, Chief Justice.

This is an action brought by Mildred Scripture Cole, joined by her husband, L. R. Cole, as plaintiffs, against W. H. Wadsworth and National Surety Corporation, as defendants, to recover for the depletion of the assets of the estate of Robert C. Scripture, deceased, in the County Court of Dallas County, Texas, in probate No. 16,619, for the misfeasance and malfeasance of the administrator in the administration of the estate. Defendant, W. H. Wadsworth, was the administrator of the said estate and defendant, National Surety Corporation, was the surety on his bond. The plaintiff, Mildred Scripture Cole, was the sole residuary legatee of the estate. Defendant, W. H. Wadsworth, filed a motion for summary judgment based on res judicata to which an answer was filed by plaintiffs. The motion was sustained by the presiding judge of the 68th Judicial District Court of Dallas County, Texas. An appeal was perfected by the plaintiffs from the judgment.

The plaintiffs bring forward two points of error upon which they base their appeal. The first point the plaintiffs complain that the court erred in sustaining defendants' motion for summary judgment based on res judicata. The complaint raised by the second point is the court erred in sustaining defendants' motion for summary judgment based on res judicata as the defendant, National Surety Corporation, was not a party to the suit cited by defendant as the basis of his motion for res judicata.

Appellees contend in their first counterpoint that 'since the damages claimed in the instant suit are additional damages allegedly resulting from the identical act of wrongful conveyance to Wernly, and the subsequent collection of rentals from said property made the basis of the cause of action on which judgment was rendered in the first suit, the motion for summary judgment based on a plea of res adjudicata was properly sustained.' In the second counterpoint, they say 'The secondary liability of National Surety Corporation, as surety, was discharged by the judgment in the previous suit which discharged Wadsworth, as principal, and the court therefore properly ruled that the former judgment was res adjudicata, notwithstanding the surety was made a party to the second suit.'

In Cause No. 58,681-C, in the District Court of Dallas County, appellants sued W. H. Wadsworth as administrator of the estate of Robert C. Scripture, deceased, alleging that on April 12, 1950, Wadsworth wrongfully, fraudulently and fictitiously conveyed to Wernly a part of Lots 9 and 10 of Block 790 of the City of Dallas and subsequently misappropriated the rents and revenues from said property in the alleged amount of $25,000.00 and prayed for judgment for the property, its rents and revenues. Appellant, Mildred Scripture Cole, alleged that she had conveyed a one-half undivided interest in and to the estate as attorney's fees. Final judgment was entered in said cause on July 25, 1958, decreeing to each, appellants Mildred Scripture Cole and Charles Ramick, her attorney, title to one-half of said property.

By first amended original petition filed in the instant case, on February 16, 1963, appellants sued Wadsworth as principal, and National Surety Corporation as surety, alleging that on April 12, 1950, Wadsworth wrongfully, fraudulently and fictitiously conveyed to W. R. Wernly part of Lots 9 and 10 of Block 790 of the City of Dallas, and over a period of ten years collected rents and revenues on the property so fictitiously sold; that such acts of Wadsworth made necessary the employment of an attorney to recover said property, which at the time was worth $20,000.00; that the payment to said attorney of one-half of said sum depleted the estate in the amount of $10,000.00; that Wadsworth collected rents on the property for ten years and converted thereof $2,400.00 to his own use and benefit; and that she had to pay her attorney $2,000.00 for collecting from Wadsworth and additional amount of $4,000.00 of said rent.

From a reading of the pleadings in Cause Nos. 58,681-C and 7445-G (Cause No. 7445-G is the case now before us on appeal) clearly reveals that the same acts are complained of in both cases, namely, a wrongful conveyance of the same property to Wernly and a misappropriation of said rents and revenues therefrom over a period of years.

This appeal presents a question of whether one may bring several suits for different items of damages arising from the same wrongful act.

We think the principle applicable here is aptly stated in 34 Tex.Jur.2d, page 592, Section 516, as follows:

'A party will not be permitted to split a single and indivisible claim or demand so as to make it a basis for successive suits, and if he attempts to do so, the judgment in the first case decided will bar prosecution of the others, unless the defendant is estopped by his conduct from raising the question of prior adjudication. Thus, a person seeking a recovery of damages for breach of an entire contract or for injuries resulting from a single tort must set forth every item of damages which he seeks to recover; any item not so pleaded will be barred forever. The rule against splitting causes of action also applies to the recovery of property. Thus, for example, when a party suing to recover a particular lot of property, consisting of various items, by reason of some specified transaction or occurrence, sets forth in his petition the particular items thereof, the judgment will usually preclude him from initiating subsequent litigation in respect of other items that could and should have been included within the pleadings in the first suit. And it has been held that judgment awarding the plaintiffs a recovery of a three-quarters undivided interest in a tract of land will bar a subsequent suit by the grantors of the plaintiffs against the same defendant to recover the whole of the land, the pleadings in the two cases being identical except for the difference in the relief asked.'

Texas cases applying the principle of law as above stated are: Eastland County v. Davisson (Tex.Com.App.), 13 S.W.2d 673, holding that damages for all known breaches of the same contract must be brought in one suit; St. Louis S. W. Ry. Co. v. Moss, 9 Tex.Civ.App. 6, 28 S.W. 1038, holding that where two horses are killed by the same act of negligence, filing suit for one horse bars a subsequent suit for damages to the other; Texas & P. R. Co. v. Scoggin & Brown, 42 Tex.Civ.App. 335, 95 S.W. 651, holding that failure to supply freight cars for shipment of cattle at a fixed place and time gives right to but a single cause of action and a suit for damage to a portion of the herd bars a subsequent suit for damages to another portion. This is the general rule.

Appellants have cited a number of authorities in support of their position. From a reading of these authorities it is apparent that appellants...