Crane v. Tunks

• Decision Date: 15 October 1940
• Docket Number: No. A-7077,A-7077
• Citation: 328 S.W.2d 434,160 Tex. 182
• Parties: Bess Burkitt CRANE et al., Relators, v. Hon. Bert H. TUNKS, District Judge, et al., Respondents. . Oct, 28, 1959. Kelley & Ryan, Houston, Hardy Hollers, Austin, for relators. Fred Parks and Fred A. Collins, Houston, for respondents. GRIFFIN, Justice. Relators, Bess Burkitt Crane, and her attorney, Robert H. Kelley, bring this action for a writ of mandamus against Honorable Bert H. Tunks, District Judge, and D. J. Glenney, III, as respondents, to vacate, amend and revise an order entered by Judge Tunks in a discovery proceeding pending in his court. From 1939-1958 D. J. Glenney, Jr., the father of D. J. Glenney, III was business manager for the properties owned by relator Bess Burkitt Crane. On
• Court: Texas Supreme Court

Page 434

328 S.W.2d 434

160 Tex. 182

Bess Burkitt CRANE et al., Relators, v. Hon. Bert H. TUNKS, District Judge, et al., Respondents.

No. A-7077.

Supreme Court of Texas.

Oct, 28, 1959.

Kelley & Ryan, Houston, Hardy Hollers, Austin, for relators.

Fred Parks and Fred A. Collins, Houston, for respondents.

GRIFFIN, Justice.

Relators, Bess Burkitt Crane, and her attorney, Robert H. Kelley, bring this action for a writ of mandamus against Honorable Bert H. Tunks, District Judge, and D. J. Glenney, III, as respondents, to vacate, amend and revise an order entered by Judge Tunks in a discovery proceeding pending in his court.

From 1939-1958 D. J. Glenney, Jr., the father of D. J. Glenney, III was business manager for the properties owned by relator Bess Burkitt Crane. On October 15, 1940 Mrs. Crane executed an instrument conveying her undivided interest in and to 1,409 acres of land out of the Jackson E. Bundick Survey, Harris County, Texas to Glenney, Jr. This deed was not recorded by Glenney, Jr. until 1946. Mrs. Crane's deed reserved to her for her natural life all income, rents and revenues of whatever kind and character from the 1,409 acres. She also reserved the executive right to make, execute and deliver any and all instuments affecting the mineral interests she had in the land. The deed further provided that should Glenney, Jr. predecease her then the deed should be null and void and of no further force and effect, and all rights vested in Glenney, Jr. by virtue of such deed should thereafter immediately revert to and vest in the grantor without the necessity of reentry or other action on her part. The record shows Glenney, Jr. alive at the time of trial.

During the year 1950, Mrs. Crane had Ernst & Ernst make an independent audit of her business affairs. This audit showed that Glenney, Jr. was indebted to Mrs. Crane in a sum of some $80,000 as a result of Glenney, Jr. overdrawing his salary account and otherwise using funds belonging to Mrs. Crane. Following this audit Glenney, Jr., on May 22, 1950 reconveyed to Mrs. Crane the interest he had received from her by deed in 1940.

On January 31, 1958 Mrs. Crane discharged Glenney, Jr. On February 21, 1958, respondent, D. J. Glenney, III, filed his original petition in the 152nd District Court of Harris County, Texas, alleging that subsequent to May 22, 1950 and on March 5, 1958, his father had deeded and transferred to him all his interest in said 1,409 acres, subject to all leases, royalties and mineral reservations and rights-of-way set out in Mrs. Crane's deed to Glenney, Jr., dated October 15, 1940. Glenney, III sought to recover the title to and possession of the 1,409 acres from relator, Mrs. Crane, on the ground that his father was subjected to fraud, duress, and coercion at the time he executed the reconveyance, and Glenney, III sought to cancel and set aside this reconveyance dated May 22, 1950. The duress alleged was that both relators were accusing Glenney, Jr. of forgery and threatening him with criminal prosecution unless he executed the deed of reconveyance. The suit to set aside the deed was numbered 502,264. Glenney, III filed his first amended petition in that cause on August 8, 1958 and attached to this pleading an affidavit of Glenney, Jr. in which Glenney, Jr. swore to the truthfulness of certain allegations. Glenney, III, on September 22, 1958, filed his second amended petition alleging the same cause of action as contained in the two prior petitions. In the alternative, he alleged that the deed of reconveyance from Glenney, Jr. to Mrs. Crane dated May 22, 1950 was in truth and in fact a mortgage to secure the approximately $80,000 owing by Glenney, Jr. to Mrs. Crane, and he prayed that such instrument be so construed. None of the pleadings filed by Glenney, III were sworn to, and no affidavit accompanied, or was attached, to the second amended original petition.

On August 14, 1958 Glenney, III filed a petition, or application, for a bill of discovery as ancillary to Cause No. 502,264. This was Cuase No. 512,093 in the 80th Judicial District Court of Harris County, Texas. This cause was later transferred to the 152nd District Court. Relators, Mrs. Crane and Kelley, were defendants in this bill of discovery proceeding. Glenney, III alleged that he was bringing his bill of discovery pursuant to Rule 737, Vernon's Ann.Tex.Rules Civ.Proc., and asked to have produced for his examination the books, records, papers, correspondence and memoranda as follows: (1) income tax records of Mrs. Crane for the years 1939 to date; (2) an audit by Ernst & Ernst of Mrs. Crane's affairs made in 1950; (3) all checks, notes, or other negotiable instruments in her possession, or in the possession of her attorney, that purported to bear her signature but which she will testify she did not sign; (4) all wills and codicils to wills of Mrs. Crane from January 1, 1939 to date; (5) (not relevant to this proceeding); (6) a complete itemized list showing dates, amounts and payees of any contributions and/or donations made to (a) a certain priest and naming him (b) a certain church order and naming it; and (7) all correspondence, notes, letters, memoranda, or copies thereof to or from the individual named in (6)(a) above. Glenney, III further asked to be permitted to reproduce any and all such written instruments as is provided in Rule 167, Vernon's Ann.Tex.Rules Civ.Proc.; he alleged such documents were not privileged nor were they written communications between relators, their agents, representatives, or employees in connection with the investigation or defense of the main suit brought by Glenney, III. Glenney, III then alleged:

'There is further good cause for the production, inspection, reproduction and/or copying of said items as herein requested by D. J. Glenney, III because each of said records requested are either the originals thereof or the only known copy thereof, and that Plaintiff, D. J. Glenney, III, would show the Court that he has no copy of said instruments and unless said instruments, and each of them, be required to be produced and inspected, reproduced and copied by him, he will be unable to prepare the pending litigation for trial, being Cause No. 502,264, hereinabove referred to, as is contemplated by Rule 737, T.R.C.P.'

He further alleged that the bill of discovery was not brought to harass or inconvenience the defendants or either of them but it was brought in order that justice may be served in connection with the preparation and trial of Cause No. 502,264, the main suit. Attached was a copy of his First Amended Original Petition in said cause. This application, or petition, was not verified; neither was the plaintiff's First Amended Original Petition in the main suit. Mrs. Crane filed a sworn plea in abatement and an answer in which she set out more fully the facts surrounding all deeds and Glenney, Jr.'s employment by her; a general denial, and a plea of limitations, etc.

On November 5, 1958, after hearing evidence, the trial court, with Judge Tunks sitting, entered an order granting Glenney, III a bill of discovery as to all items enumerated in the petition, except (5), and required relators to appear before the trial court and testify in person on November 10, 1958, and bring with them the documents designated in Glenney, III's application as modified by the court's order. This order, in addition to granting the bill of discovery aforesaid, provided for the inspection and copying of said instruments as were material and relevant to plaintiff's main suit, 'in such manner as the Court may deem proper and upon terms and conditions that the Court may deem just.' To make the court's position clear regarding the documents and instruments sought to be examined and reproduced, Judge Tunks stated he would not permit examination and inspection by plaintiff's attorney of any documents which, in the court's opinion, contained nothing which conceivably would be evidentiary of any issue in this main cause; where there was any question in the court's mind that the instrument was relevant and did tend to prove the issue which plaintiff sought to prove by it, the court would examine the instrument and if anything was found in it that the court conceived could possibly prove that issue, it would be made a part of the record and the plaintiff would be permitted to examine and reproduce it, barring some other reason why it should not be reproduced.

Prior to beginning the examination of relator Kelley, respondent judge had asked respondent Glenney, III's counsel to state the materiality and relevancy of the income tax returns to the trial of the main cause. Respondent's counsel orally stated that he considered the income tax returns of Mrs. Crane relevant and material to the issues in the main cause because respondent felt the returns would disclose whether or not Glenney, Jr., while he was in the employ of Mrs. Crane, had done a good job managing Mrs. Crane's estate during the period from 1939 to 1959; to show that Mrs. Crane was aware of her holdings; to show the size of her estate and how much this gift of property valued at from $2,000,000 to $3,000,000 would decrease her estate as compared with present income producing property, or small income producing property; and to place the size of the gift in proper relation to her total wealth; to show how the money belonging to Mrs. Crane that was taken by Glenney, Jr. was treated taxwise; whether it was charged off by her as a bad debt or otherwise; how Mrs. Crane treated the assets covered by the reconveyance by Glenney, Jr. to her in 1950; what contributions Mrs. Crane made to the named priest and to the church order; to compare the gift made to Glenney, Jr. by deeding him the 1,409 acres with gifts made to the named priest and the church order; and whether or not Mrs. Crane treated the rental on the apartment she furnished to the named priest as a business expense or as a donation. This was...