Davis v. Cox

• Decision Date: 07 March 1928
• Docket Number: (No. 3005.)
• Citation: 4 S.W.2d 1008
• Parties: DAVIS et al. v. COX et al.
• Court: Texas Court of Appeals

4 S.W.2d 1008

DAVIS et al. v. COX et al.

(No. 3005.)

Court of Civil Appeals of Texas. Amarillo.

March 7, 1928.

Rehearing Denied April 4, 1928.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Suit by W. F. Davis and others against P. B. Cox and others, in which defendants Cox and another filed a cross-action. Judgment for defendants and cross-complainants, and plaintiffs appeal. Affirmed.

Templeton & Templeton, of Fort Worth, for appellants.

T. R. Boone and Chas. I. Francis, both of Wichita Falls, for appellees.

HALL, C. J.

On August 30, 1924, appellant Davis, J. P. Howe, and H. C. Meier filed a suit in the district court of Wichita county, against the Wichita State Bank & Trust Company and P. B. Cox and I. W. Keyes, to recover the sum of $1,870. That suit was based upon a contract of settlement entered into by the parties to a certain litigation, under the terms of which contract $10,000 was deposited with I. W. Keyes, as trustee, charged with the payment of certain bills and expenses mentioned in the contract.

The plaintiffs allege that Keyes breached his trust and sought to recover from Keyes and Cox the $1,870, which they allege defendants had misapplied.

Cox and Keyes answered in that case, and by cross-action sought to recover attorney's fees and trustee's fees alleged to be due them, growing out of the matters and connected with the contract declared upon in plaintiffs petition.

There was a trial on the 13th day of March, 1925, resulting in a judgment that plaintiffs, the appellants in this action, take nothing by their suit against the defendants, and that Keyes recover of plaintiffs the sum of $500 as trustee's fees; and that Cox and Keyes, as attorneys, recover attorney's fees in the sum of $2,000.

From that judgment, a writ of error was sued out, and under the orders of the Supreme Court equalizing the dockets of the Courts of Civil Appeals, it found its way into this court, where the judgment below was reformed and affirmed on May 19, 1926.

For a fuller statement of the nature and result of the suit and the holding of this court upon the issues involved, reference is made to the report of the case in Davis v. Wichita State Bank & Trust Co., 286 S. W. 584.

After the writ of error proceedings had been prosecuted by the appellants and the judgment had been affirmed and application for writ of error dismissed by the Supreme Court on November 10, 1926, and after mandate from this court had been issued to the trial court, an execution was issued, based upon the judgment, and an attempt was being made to collect the amount due. In order to prevent the enforcement of the judgment, the appellants filed their petition in the district court of Wichita county, in which the former judgment was rendered, praying for an injunction and for the purpose of canceling and annulling said judgment.

To this petition, the appellees Cox and Keyes answered by what is termed a plea in abatement and by general demurrer. Evidence was heard upon the plea, and the court sustained the general demurrer and also the plea in abatement, and, the appellants refusing to amend, judgment was entered against them; hence this appeal.

Because appellants attack the judgment of the court in sustaining the general demurrer to the petition, it is proper that the allegations upon which plaintiffs base their prayer for relief be set out in this opinion. The petition, omitting the formal parts, is as follows:

"Heretofore, on, to wit, the 30th day of August, 1924, the above-named plaintiffs filed in the Eighty-Ninth district court of Wichita county, Tex., their suit against the above-named defendants, to recover of and from said defendants, jointly and severally, the sum of, to wit, $1,870, the nature of which suit and the facts upon which it was based are shown by the plaintiff's original petition filed in said cause, a true copy of which is made a part of this petition for the purpose of showing the nature of said suit and the matters involved therein.

"Soon after said suit was instituted, it was transferred to the Seventy-Eighth district court of Wichita county, Tex., for trial, where it remained on the docket and undisposed of for several months. Said suit was, in truth and in fact, instituted by said plaintiffs for the use and benefit of the Orient Petroleum Company, a corporation which was interested in the trust fund involved in said litigation. But by some oversight in bringing said suit, this fact was not stated in the petition therein filed.

"While said suit was pending, and before it had ever come to trial, another and independent suit was instituted in Eighty-Ninth district court of Wichita county, Tex., against said Orient Petroleum Company, by the Wichita State Bank & Trust Company, of Wichita county, Tex., which suit involved substantially in part the same matters which were involved in the suit above referred to. Said suit so instituted against said Orient Petroleum Company was thereafter removed to the federal court for trial, where it is still pending and undisposed of — all of which facts these plaintiffs charge and believe were well known to the defendants herein.

"After the institution and removal of said second suit to the federal court, these plaintiffs assumed and believed, and, as they understood, it was tacitly agreed by all the parties connected with the suit first above referred to, that the matters in issue in said cause would be determined in the second action, and that until this was done the prosecution of the first action would remain in abeyance. Acting upon this assumption and belief, these plaintiffs settled with their attorneys who had originally instituted said suit for these plaintiffs against said defendants, and they were discharged as such attorneys, and thereafter they had no authority to act for plaintiffs in said action. Up to this time one of the defendants, I. W. Keyes, had not been, as these plaintiffs are informed and believe, served with citation, and the cause was not then ready for trial on its merits.

"The plaintiffs, J. P. Howe and H. C. Meier, are nonresidents of the state of Texas, and they had no personal knowledge of the progress of said litigation; but the plaintiff W. F. Davis was acting for them as well as himself in bringing and prosecuting said action. The plaintiff W. F. Davis himself was engaged in business, and was out of the state of Texas for considerable portion of his time; and, believing that said cause so instituted by plaintiffs against said defendants was to remain in abeyance until the case in the federal court had been tried, he did not give said case in said Seventy-Eighth district court that attention which he otherwise would have done.

"Thereafter, on, to wit, the 24th day of February, 1925, the defendants P. B. Cox and I. W. Keyes filed in said cause their cross-bill, wherein they set up and claimed for the first time that these plaintiffs were indebted to them for attorneys' fees as alleged and set out in their cross-bill, a true copy of which is hereto attached marked Exhibit B, and is made a part of this petition, which exhibit is here referred to in explanation of their claim for such attorneys' fees.

"Plaintiffs aver that no such services were ever rendered by said defendants to these plaintiffs; that said defendants were never employed by these plaintiffs in any capacity whatever; and that plaintiffs never owed them any amount for any such services or for any other claim or demand. They further aver that the identical services for which the said defendants sought and recovered judgment against these plaintiffs in their cross-action were rendered during the years 1920 and 1921, in the foreclosure suit of the Wichita State Bank & Trust Company v. Newtex Refining Company et al., and that said services were rendered to and for the Wichita State Bank & Trust Company, plaintiffs in said suit, wherein this plaintiff, W. F. Davis, was not a party and not interested, but wherein the plaintiffs J. P. Howe and H. C. Meier were defendants; that the fees owing to said attorneys for the services so rendered to said Wichita State Bank & Trust Company, in the sum of $3,241.66, which fees were agreed upon, were fully paid, and said claim for attorney's fees was fully discharged on May 31, 1921. During the months of January to July, inclusive, of the year 1925, the plaintiffs were absent from the state of Texas practically all of the time, and the defendants herein, Cox and Keyes, well knowing that the plaintiffs were absent from the state most of the time, fraudulently asserted their cross-action against these plaintiffs, as stated in their cross-bill filed in said cause, and, taking advantage of plaintiffs' absence and their ignorance of such claim, filed said cross-action and soon thereafter demanded a trial thereof without giving these plaintiffs any notice that such claim was being asserted against them.

"Plaintiffs say that they had no reason to suspect that any such claim would be made against them, and that they knew nothing of it until long after the judgment herein complained of was rendered against them, and after the term of court at which said judgment was rendered had expired. They say that they made no defense to such claim and cross-action, because they knew nothing of it.

"Notwithstanding such facts, which were well known to said defendants, they thereafter, on, to wit: the 13th day of March, 1925, said defendants Cox and Keyes, as plaintiffs, are informed and believe, appeared in court and demanded a trial of said cause, which was granted by the court; and upon the trial of said cause, judgment was rendered as shown in a true copy thereof, which is hereto attached and marked Exhibit C, and is made a part hereof.

"Plaintiffs say it is not true that plaintiffs were represented therein by attorneys who appeared and acted for them on the trial of said cause. While it may be true, and probably is, that the attorneys...