Douthitt v. Farrar

• Court: Texas Court of Appeals
• Writing for the Court: Conner
• Citation: Douthitt v. Farrar, 159 S.W. 182 (Tex. App. 1913)
• Decision Date: 14 June 1913
• Parties: DOUTHITT et al. v. FARRAR.

159 S.W. 182

DOUTHITT et al. v. FARRAR.

Court of Civil Appeals of Texas. Ft. Worth.

June 14, 1913.

Rehearing Denied July 5, 1913.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Suit by A. P. Farrar, as administrator de bonis non of the estate of T. J. Farrar, deceased, against Dollie Douthitt and others, as heirs of Mattie Farrar, deceased. Judgment for plaintiff, and defendants appeal. Affirmed.

Callaway & Callaway, of Comanche, for appellants. Goodson & Goodson, of Comanche, for appellee.

CONNER, C. J.

This suit was instituted by A. P. Farrar as administrator de bonis non of the estate of T. J. Farrar, deceased, against appellants as heirs of Mrs. Mattie Farrar, also deceased. It was alleged that T. J. Farrar and Mattie Farrar as husband and wife jointly owned the north half of block 1, Pavilion Park addition to the city of Comanche, and also two notes for $200 each, and certain household furniture of the value of $500. It was charged that the defendants had taken possession of all of the property described, and the administrator sought to recover one-half for the benefit of the estate. The appellee, as administrator, further alleged as an alternative ground of recovery, if for any reason it should be found that the lot and notes above described were not the community property of the said T. J. and Mattie Farrar at the date of their death, that the plaintiff was nevertheless entitled to recover $400 that had been advanced by T. J. Farrar to Mattie Farrar, under an agreement that Mattie Farrar would take title to certain property situated in Goldthwaite, Tex., in her own name, and hold it in trust to the extent of said $400, for the benefit of said T. J. Farrar; that the property first described had been purchased with the proceeds of the Goldthwaite property, afterwards sold; that the said Mattie Farrar had always recognized the trust alleged; and that the said T. J. Farrar after the purchase of the Comanche property had further paid thereon the sum of $113 out of his own separate estate. The plaintiff charged that the two said sums constituted an equitable lien upon the Comanche property, and he prayed in event he was denied a recovery of the undivided interest first sought that he have judgment for the said sums of $400 and $113, with a foreclosure of his equitable lien. The defendants present a number of demurrers, which it will not be necessary to notice, general and special denials, and specially pleaded that the Goldthwaite property had been owned and claimed by Mattie Farrar in her own separate right prior to her marriage with T. J. Farrar, and specially denied the agreement alleged by the plaintiff, under which it was charged T. J. Farrar had advanced to Mattie Farrar $400, and charged, if any such agreement in fact had been made, that it was void as against the statute of frauds, and but constituted a debt barred by limitation. It was further specially pleaded that the said north half of block 1, Pavilion Park addition to Comanche, had been the homestead of the said T. J. and Mattie Farrar at the time of their several deaths, and that the personal property was household and kitchen furniture exempt under the statute, and that therefore neither homestead nor personal property were recoverable at the suit of the administrator. The trial resulted in a verdict and judgment for the appellee for an undivided half interest in the north half of said block 1, Pavilion Park addition to Comanche, and the said promissory notes and personal property, from which said judgment appellants have appealed, assigning various errors to the proceedings.

Appellee has objected to every assignment of error that has been presented for a violation of rules 25 and 29 (142 S. W. xii), relating to assignments. Rule 25, as amended and promulgated by the Supreme Court on January 24, 1912, provides, among other things, that in order to be a distinct assignment of error the assignment "must refer to that portion of the motion for a new trial in which the error is complained of." Rule 29 requires that the assignment of error, as the same appears in the transcript, shall be copied in the brief. See 142 S. W. xii. While none of appellants' assignments refer to the motion for a new trial, where the error is complained of, as provided by rule 25, we must yet overrule this objection because (if for no other reason) of the effect, as we construe it, of the act of April 4, 1913 (Acts 33d Leg. c. 136), made immediately effective, amending article 1612, Revised Statutes 1911. The amended article provides, among other things, "where a motion for a new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error," etc. This amended article, relating as it does to a mere matter of procedure, is now in force. We, therefore, hardly feel justified in refusing to consider an assignment in the brief merely because it does not refer to an assignment in the record of doubtful or no legal standing.

The amendment referred to, however, cannot be held to render rule 29 inapplicable, and, after careful comparison of appellants' several assignments of error as presented in the brief, we find but three that are even substantial copies of the assignments filed below. In one instance the assignment presented in the brief is made up of two of the...