Creglar v. Hyde
| Decision Date | 09 June 1955 |
| Docket Number | No. 3268,3268 |
| Citation | 280 S.W.2d 783 |
| Court | Texas Court of Appeals |
| Parties | Ada CREGLAR, Appellant, v. Mrs. Ara S. HYDE et vir, Appellees. |
W. J. Durham, Dallas, for appellant.
Neal C. DeShazo, Dallas, for appellees.
The parties to this appeal will be referred to as they were in the trial court. The plaintiff, Ada Creglar, a feme sole, brought suit against defendants, Mrs. Ara S. Hyde and husband, on February 17, 1954, to set aside a trustee's deed purporting to convey a parcel of land in pursuance of the powers of sale given in two deeds of trust executed by plaintiff for the benefit of defendant, Mrs. Hyde. The deeds of trust were given to secure the payment of two notes which plaintiff executed and delivered to Mrs. Hyde, one of the notes being dated November 11, 1948, in the principal sum of $2,500, bearing interest at the rate of 7% per annum, and being payable in monthly installments of $40 each, the other note being dated June 25, 1951, in the principal sum of $2,495.37, bearing interest at the rate of 10% per annum, and being payable in monthly installments of $50 per month.
Plaintiff alleged, among other things, that she had paid to Mrs. Hyde in cash and rents derived from the apartment house located on the lot in controversy, the sum of $3,925 since the execution of the above notes; that the apartment house was damaged by fire during the month of March in 1951 and, from the proceeds in the sum of $1,650 received from the insurance covering the loss, $1,100 was used to repair the damage and $550 was paid over to Mrs. Hyde to be applied on the notes; that plaintiff and Mrs. Hyde agreed, verbally, that Mrs. Hyde might collect the rentals from the property and apply the same as credits upon the notes; that Mrs. Hyde had collected the rentals but had refused to furnish to plaintiff a statement showing the amount collected and the date upon which each collection was made; that plaintiff made written demand upon Mrs. Hyde to furnish such statement, in order that she might thereby determine accurately the amount of principal and interest then due, if any, on the notes, advising Mrs. Hyde that she was willing, ready and able to pay the balance due on said notes but that she did not know and could not determine the amount of the balance due without such statement. Plaintiff further alleged that, notwithstanding the foregoing facts, Mrs. Hyde failed and refused to furnish her the information demanded but, without doing so, caused the trustee in the deeds of trust to attempt to convey the mortgaged property to her. Plaintiff prayed that the court determine the balance of the amount due on the notes, permit plaintiff to pay the same into the registry of the court, and that upon such payment the deeds of trust and the purported trustee's deed to Mrs. Hyde be cancelled and held for naught.
Defendants filed their amended answer in the cause on June 24, 1954. They interposed a plea of not guilty and, in the alternative, alleged by affirmative pleas that prior to the last executed deed of trust note they had loaned money to plaintiff on four personal notes, three of which were paid by plaintiff, and that the balance owing on the other note was merged with and included in the amount evidenced by the last deed of trust note dated June 25, 1951. They further alleged that if they made any oral agreement with plaintiff to collect the rents accruing from the property covered by the deeds of trust and keep an accurate account thereof, as alleged by plaintiff, that there was no consideration for such agreement. They also alleged that plaintiff made default in the payment of the two installment notes which were secured by the two deeds of trust, that they exercised their option to mature the full amount of the balance of both notes and that they notified plaintiff they had done so prior to the time when the property was sold to Mrs. Hyde on December 1, 1953, by the trustee in said deeds of trust.
The record discloses that the case was set for trial on the court's non-jury docket for June 17, 1954; that the trial court passed the case at that time without any announcement from defendants because the plaintiff's attorney was unable to try the case on account of a previous setting of another matter in another court; that on June 22, 1954, the attorney for plaintiff demanded a jury, paid a jury fee, caused the case to be placed on the trial court's jury docket and notified the attorney for defendants that he had done so. On July 8, 1954, the trial court entered an order appointing a master in chancery in the cause, empowering him to summon witnesses and to hear had take testimony on all issues involved in the case and to file 'with the court his findings of fact on all issues involved herein and his conclusions of law with convenient speed, and that any party desiring to except to such findings or conclusions shall file his exceptions within ten days after the filing of such findings and conclusions.'
The record further discloses that immediately after the trial court announced his appointment of a master in chancery in this cause, and before the master was sworn in or had started upon the performance of his duties as such, the attorney for plaintiff objected and excepted to the appointment of a master in chancery on the ground that this case had been placed upon the jury docket 'and is now upon the jury docket and that the plaintiff is entitled to a jury trial on the facts of this case, and that referment of this case to a master in chancery is a denial to the plaintiff of the right of a trial by jury, in violation of rights guaranteed to her under the Constitution of Texas and under the Constitution of the United States.' Notwithstanding such objections and exceptions of the plaintiff, the master proceeded forthwith to hear the verbal testimony of Mrs. Hyde, of plaintiff and of the contractor who repaired the damage to plaintiff's apartment house resulting from fire. Various exhibits were also placed in evidence. The master in chancery filed with the...
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Iowa Public Service Co. v. Sioux City
...court found to constitute exceptional conditions requiring the reference. It is a legal conclusion only that such exist. Creglar v. Hyde, Tex.Civ.App., 280 S.W.2d 783. However, giving the effect to the order suggested by counsel that the issues are complex, extensive expert testimony is inv......
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...Rule 171 to appoint a master in chancery in other than exceptional cases and not then except for good cause. Creglar v. Hyde, 280 S.W.2d 783 (Tex.Civ.App.1955, writ ref. n. r. e.). Even though the parties in Bell disputed the character of certain property and disputed the value of the husba......
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