Davis v. Wichita State Bank & Trust Co.

• Decision Date: 19 May 1926
• Docket Number: (No. 2682.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 286 S.W. 584
• Parties: DAVIS et al. v. WICHITA STATE BANK & TRUST CO. et al.
• Court: Texas Court of Appeals

286 S.W. 584

DAVIS et al. v. WICHITA STATE BANK & TRUST CO. et al.

(No. 2682.)^*

Court of Civil Appeals of Texas. Amarillo.

May 19, 1926.

Rehearing Denied June 30, 1926.

Error from District Court, Wichita County; Guy Rogers, Judge.

Suit by W. F. Davis and others against Wichita State Bank & Trust Company, P. B. Cox, and I. W. Keys, wherein defendants brought cross-actions. Judgment that plaintiffs take nothing by their suit, that defendant Wichita State Bank & Trust Company take nothing on its cross-action, that defendant I. W. Keys recover from plaintiffs, and that defendants P. B. Cox and I. W. Keys as a firm recover from plaintiffs, and plaintiffs bring error. Judgment reversed in part and reformed, and as reformed affirmed.

Smoot & Smoot and Kenley, Dawson & Holliday, all of Wichita Falls, for plaintiffs in error.

Cox, Fulton & Dickey, of Wichita Falls, and I. W. Keys, of Mexia, for defendants in error.

HALL, C. J.

W. F. Davis, J. P. Howe, and H. C. Meier filed this suit August 30, 1924, in the Eighty-Ninth district court of Wichita county, against the Wichita State Bank & Trust Company, P. B. Cox, and I. W. Keys, to recover against the defendants jointly and severally the sum of $1,870. The suit is based upon a contract in writing, executed April 1, 1921, by the Wichita State Bank & Trust Company, party of the first part, J. M., W. W., and T. D. Lawrence and E. E. Flisher, parties of the second part, and by each of the plaintiffs herein, as parties of the third part. The contract purports to be an agreement of settlement between the parties of a suit then pending in the district court of Wichita county, between the Wichita State Bank & Trust Company, and New-Tex Refining Company, and other defendants, with which action another suit of Lawrence Bros. & Flisher against the same defendants, originally filed in Tarrant county, and transferred to Wichita county, had been consolidated, together with a third suit by plaintiff in error Howe, in which there were many interveners, and in which last suit a receiver had been appointed. In the consolidated action the said bank, Lawrence Bros. & Flisher, after some consultation, settled their differences upon the terms set out in the contract, which is the basis of the plaintiffs' action in this suit.

In the contract entered into, it was agreed, among other things, that the plaintiffs in error herein would pay off and discharge certain current bills and expenses in litigation in the original suit, which, as estimated at the time of the contract, would amount to about $10,000; that plaintiffs in error would deposit with I. W. Keys, as trustee, said sum of money; and that Keys, as trustee, would look to the payment of said bills and expenses for plaintiffs out of the money so deposited.

The plaintiffs allege in this suit that they deposited about $7,500 in said bank to the credit of Keys, as trustee, who breached his trust, and this suit is an effort to recover from the bank, Cox, and Keys, said sum of $1,870, which it is alleged the defendants misapplied and appropriated.

The bank answered October 22, 1924, setting up in full its defense, and by cross-action asked for affirmative relief, claiming certain sums which it alleges grew out of the same contract and the same transaction declared upon in plaintiffs' petition.

Cox and Keys answered February 24, 1925, and in addition to their answer, by cross-action, they asked for attorney's fees and trustee's fees alleged to be due them because of the matters and contract declared upon in plaintiffs' petition.

There was a trial to a jury which resulted, on the 13th day of March, 1925, in a judgment that plaintiffs take nothing by their suit against either of the defendants; that the bank take nothing against plaintiffs on its cross-action; that Keys recover from the plaintiffs the sum of $500, with interest from date at 6 per cent.; and that Cox and Keys, as a firm, recover of plaintiffs the sum of $2,000. It was further decreed that plaintiffs pay all costs.

There is a bill of exception in the record, presented by plaintiffs' attorneys, indorsed, "Filed March 21, 1925," by the clerk of the district court.

The following statement appears on the bill, signed by the trial judge:

"This bill of exception examined and approved and ordered filed as a part of the record in this cause this the _____ day of March, A. D. 1925."

The bill of exception recites that on the 13th day of March, 1925, the case having been set for trial, it was on said date called for trial at 9 o'clock, before plaintiffs or their attorneys arrived in the courtroom; that the defendants, Cox, Keys, and the bank, announced ready in the absence of plaintiffs or their attorneys; that a few minutes thereafter plaintiffs' attorneys came into the courtroom, and without further call they announced to the court that they did not desire to further prosecute their suit, and asked leave of the court to take a nonsuit. Thereupon defendants made objection that a cross-action had been filed by them against plaintiffs; that a nonsuit could not be taken, and requested that the court refuse to permit plaintiffs to take a nonsuit; that upon consideration, the court refused to permit plaintiffs to take a nonsuit, and tendered plaintiffs a jury list, whereupon plaintiffs' attorneys stated to the court that they would stand upon their right to take a nonsuit, and requested that they be excused from further attendance upon the court. This request was granted, and without further call of said cause or announcement from either party, plaintiffs and their attorneys retired from the courtroom and were not in attendance, further than as recited in this bill, during the subsequent proceedings had in the cause; that they stated to the court that they appeared only for the purpose of taking a nonsuit, made no announcement whatever in the cause, and when the court denied their request that they be allowed to take a nonsuit, they then and there in open court tendered this bill of exception to the action of the court, praying that it be examined, signed and approved, and ordered filed.

After the judgment was entered, the plaintiffs by writ of error appealed, and filed their transcript in the Court of Appeals at Fort Worth on the 8th day of December, 1925. By order of the Supreme Court the case was transferred to and filed in this court March 5, 1926.

On February 22d, last, the defendants in error, hereinafter styled defendants, filed their motion in this court to strike out the aforesaid bill of exceptions, upon the grounds: (1) That it was not properly approved by the trial court; (2) because the trial judge had attempted to approve it without having first submitted it to counsel for defendants in error, as provided in article 2064, V. S. C. S., being under the mistaken impression that the bill had been agreed to by all parties; and (3) because the trial judge had withdrawn his approval of the bill by an order entered at the same term of court, after the facts set out in the bill had been called to his attention, and that said order had never been vacated or amended, and that after withdrawing his approval he had never approved said bill or any other bill pertaining to the matters recited therein. The order entered upon the minutes of the court, dated April 11, 1925, signed by the trial judge, is as follows:

"It now appearing to the court that the defendants' bill of exception heretofore approved does not properly reflect the full text of the matters therein mentioned, the approval of the court thereon is hereby withdrawn."

The defendants' motion to strike the bill of exceptions was contested by the plaintiffs by an answer filed in this court March 9th, last, upon the following grounds:

(1) Because the motion to strike was not filed in this court within 30 days after the filing of the transcript as required by rules 8 and 11 for the Courts of Civil Appeals.

(2) Because the motion to strike presents issues of fact dehors the record which cannot be tried in this court upon affidavit or otherwise, since the questions presented do not go to the jurisdiction of this court, under article 1823, R. S.

(3) Because the evidence presented upon the issues in support of the motion is incompetent.

(4) Because the attorneys for defendant were present and participated in the investigation in open court, which resulted in the trial judge finally approving the bill.

(5) Because the presentation of the bill to opposing counsel, under article 2064, before its approval, was unnecessary when said counsel were present in court and participated in the hearing held for the express purpose of determining whether the bill should be allowed. This motion and the answer to it were presented on March 10th, but were not acted upon by this court, and an order was entered that they be passed to be considered with the case on the merits. Thereafter, and before the submission of the case, the plaintiffs commenced proceedings in the trial court to substitute the lost bill of exceptions which they assert was given them by the judge after he had withdrawn his approval of their original bill, and the defendants also have moved the court to correct his order withdrawing his approval so as to show that it was the plaintiffs' bill, instead of the defendants' bill, from which he had withdrawn his approval. The defendants' motion was granted, and the order corrected by a nunc pro tunc order entered March 13, 1926. At the same time the court granted the plaintiffs' motion and gave them what the plaintiff insists is no bill of exception at all. We think this contention is sound.

It appears from the copy of the proceedings of March 13, 1926, in which defendant asked for the correction of the clerical error in the order withdrawing the court's approval of the bill, showing that it was plaintiffs' bill instead of defendants' bill, and in which plaintiffs endeavored to have a substituted bill prepared, that the...