Emery v. Barfield

• Decision Date: 08 March 1913
• Citation: 156 S.W. 311
• Parties: EMERY et al. v. BARFIELD et al.
• Court: Texas Court of Appeals

156 S.W. 311

EMERY et al. v. BARFIELD et al.

Court of Civil Appeals of Texas. Ft. Worth.

March 8, 1913.

Rehearing Denied April 4, 1913.

Appeal from District Court, Taylor County; T. L. Blanton, Judge.

Action by F. H. Barfield and others against S. E. Emery and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Ben L. Cox and Eugene De Bogory, both of Abilene, for appellants. J. M. Wagstaff, of Abilene, for appellees.

CONNER, C. J.

For the second time appellants present to this court for revision an adverse judgment in a suit against them by appellees F. H. Barfield and others, who are the children and children-in-law of Susan Sullivan and J. M. Sullivan, deceased, to recover the alleged undivided community interest of their father, J. M. Sullivan, in a part of the Samuel Andrews survey situated in Jones county. See 138 S. W. 419. On the former appeal the judgment was reversed because of an erroneous charge. The issue upon which the case turns is whether at the date of the death of J. M. Sullivan the land in controversy was community property or the separate property of Susan Sullivan, the surviving wife under whom appellants claim. The trial now presented for review was before the court without a jury, and the plaintiffs again secured a judgment in their favor, from which this appeal is prosecuted.

The first question presented is one of practice. Within due time after the trial appellants filed their written motion under the statute requesting the court to file his findings of fact and conclusions of law, and this motion was called to the court's attention in due time and order. The court failed to file his conclusions within ten days after the adjournment of the term, as required by article 2075, Revised Statutes 1911, although he did do so later, which, however, have not been brought up in the record. The court in his explanation to the bill of exceptions presenting the matter undertakes to excuse his failure on the ground that he and his home were quarantined by duly constituted health officers during the period necessary for the preparation of the conclusions, and this explanation is controverted by a number of affidavits of contrary import. We, however, are of opinion that the issue presented by the explanation and controverting affidavits must be disregarded as immaterial, for the effect of a failure to file such conclusions upon the rights of the losing party is necessarily the same whether the court's failure be culpable or wholly blameless. The question then is: Shall the judgment be reversed because of the failure of the court to file his conclusions of fact and law as requested? The majority think it must be so ordered, while the writer entertains a contrary view. In explanation of the difference of opinion among us, it should be stated that a statement of facts was duly made out and filed in the court below which was agreed to by all parties and approved by the court, and that therefrom, omitting transmutation of title not thought to be necessary to give, it in effect appears that the land involved in controversy became vested in J. M. Sullivan in 1882 as the community property of himself and wife, Susan Sullivan. It is undisputed that on the 17th day of September, 1891, one R. H. Parker instituted his suit against J. M. Sullivan in a justice's court upon a promissory note for $34.52; that on October 26, 1891, judgment was rendered for the plaintiff against the defendant J. M. Sullivan for the sum of $23.50, together with costs, and that execution issued upon such judgment on November 10, 1891, which was returned showing a levy upon a small amount of cash in the hands of a constable; that an alias execution by virtue of said judgment was issued December 9, 1891, which at an hour not shown was levied upon land including that in controversy on December 10, 1891, by virtue of which levy the land in controversy was later sold to R. H. Parker for $25. The regularity of these proceedings is in no wise questioned. On the day of the levy of the alias execution, to wit, on December 10, 1891, at an hour not shown, J. M. Sullivan made a quitclaim deed to his wife, Susan Sullivan, conveying 1,150 acres of the Samuel Andrews survey (including the land in controversy) for a recited consideration of $10 paid and Susan Sullivan's assumption of a mortgage indebtedness of $2,500. The evidence is silent as to whether this deed was executed before or after the Parker levy. It was not recorded, however, until February 23, 1892, some time after the levy and return of the execution. Later, viz., on March 29, 1892, the said R. H. Parker executed a quitclaim deed to Susan Sullivan for a consideration of $75 paid, conveying 951 acres of the Samuel Andrews survey which included the land in controversy. J. M. Sullivan died intestate on September 7, 1892, and this suit was instituted on April 19, 1909.

There is further evidence showing later conveyances from Susan Sullivan to her son, S. E. Emery, one of the appellants herein, upon the consideration of caring for her during the remainder of her life, and from S. E. Emery conveying 100 acres to the appellant W. L. Grogan; but, as the particulars relating to these conveyances are not deemed pertinent to the present inquiry they need not be further noticed.

Susan Sullivan at the time of the trial was about 88 years of age, and the only substantial controversy in the evidence is whether the $75 paid to R. H. Parker for his conveyance on March 29, 1892, was of the separate estate of Susan Sullivan. On the last trial she testified on this subject: "I gave him (J. M. Sullivan) the money to redeem the land. I gave him 85 or 87 dollars, somewhere. The money that I gave him at that time I got from my father, Samuel Andrews. * * * I have got some of that original money now that I got from my father's estate. It is gold. I have got a right smart of it now. I came from Karnes county up here on the Clear Fork. My father did not live in Karnes county. He lived in De Witt county. There is where he died. My recollection is that it must have been something like three or four years before my husband's death that I gave him that 85 or 87 dollars. He came to town right straight the day I gave him the money. I guess he came. He said he did. That $85 was a part of the original money that I got from my father's estate." The plaintiffs however, introduced Susan Sullivan's testimony upon a former trial, which on the same subject is as follows: "The money I let Mr. Sullivan have was to redeem the property from taxes. I thought I told you when that was. I could not say positively when that was. I do not know anything about anybody going there and selling the land. I never saw anybody come in there and sell the land that I know of. Nobody ever told me that the sheriff sold the land. It never was that I know of. I have no recollection of it. I gave him that money, of course, to recover the land. I got that money from my father. It came from my father. I had stock and I had money. I always have money and I always did have it. I had stock and horses, of course, wasn't that something coming to me? I had the money and I always had it, I told you. That came off of the place there and I had money besides. Just so I had it, that is sufficient. It came from the increase of the stock my father gave me." There was also testimony by the children plaintiffs to the effect that, if their mother had on hand at the time of the sale of the land to Parker any original money received from her father, they had no knowledge of it, and that continuously for a number of years after their father's death their mother, Susan Sullivan, frequently referred to and acknowledged their interest in the land in controversy. This, however, was denied by Mrs. Sullivan. The foregoing presents all of the evidence deemed necessary to present, and substantially all relating to, the question under consideration, unless perhaps reference should be made to the fact that there was some testimony tending to show that J. M. Sullivan had become insolvent before the date of the Parker judgment.

Under this state of facts, as before stated, the majority think the judgment must be reversed; their view being presented in the language of Mr. Justice SPEER as follows:

"It is conceded, as indeed it must be under the authorities, that an error has been committed by the trial judge which ordinarily would require a reversal of the judgment. We refer to the failure of the trial judge to file his findings of fact after having been duly requested to do so by the appellants.

"The fact that `after ten days have elapsed from the adjournment of the court the power of the trial judge to file conclusions of fact and law ceases' (Wandry v. Williams [Sup.] 124 S. W. 85), and the attempt of the trial judge to file such conclusions after that time did not constitute that paper any part of the record on this appeal, and the failure of appellant to incorporate the same into the transcript is to be commended rather than criticised. It would have been stricken out on motion. See Bradford v. Knowles, 11 Tex. Civ. App. 572, 33 S. W. 149. We approve the rule as quoted from Mr. Justice Reese of the First district to the effect that the error in ...