Essex v. La Boue

• Decision Date: 23 June 1949
• Docket Number: No. 12095.,12095.
• Citation: 223 S.W.2d 35
• Parties: ESSEX et al. v. LA BOUE et al.
• Court: Texas Court of Appeals

223 S.W.2d 35

ESSEX et al. v. LA BOUE et al.

No. 12095.

Court of Civil Appeals of Texas. Galveston.

June 23, 1949.

Rehearing Denied September 29, 1949.

Edgar C. H. Soule, Mac Naughton & Leveridge, William A. Mac Naughton, Houston, for appellants.

Combs & Dixie, Houston (Warner F. Brock, Houston, of counsel) for appellees.

GRAVES, Justice.

This appeal is from a judgment of the 133rd District Court of Harris County, Hon. Wilmer B. Hunt presiding, sitting without a jury, decreeing that the appellees, Mary La Boue, joined by her husband, Ursin La Boue, Anita Granger, joined by her husband Joseph Granger, Rosetta Hebert, a feme sole, Whitney Hebert, Ida Bobino, joined by her husband, Ralph Bobino Sylvia Frederick, joined by her husband, John Frederick, Zolla Babineaux, a feme sole, Arthur Hebert, Abraham Hebert, and Naoma Carmier, joined by her husband, Alfred Carmier, recover from the appellants, Adeline Essex, joined by her husband, Arthur Essex, the title to and possession of Lots 44, 45 and the West 1/2 of Lot 46, in Block 18, of Highland Addition to Houston, Texas, and that, in turn, the appellants recover $6.96 in money from the appellees.

In this Court, appellants attack such judgment in their original brief, upon these 3 points:

"First: The trial court erroneously awarded the personal property of Adeline Essex and Willie Hebert to the appellees, such presonalty being in the form of a joint savings account and owned by appellant upon the death of Willie Hebert, she owning as survivor at least the amount contributed to the account.

"Second: The trial court erred in permitting testimony as to acts and conversations of the deceased by appellee and then denying the appellant the right to testify as to the acts and conversations with deceased, which formed a basis for her defense, such incompetancy under the death-statute, Vernon's Ann.Civ.St. Article 3716, having been waived by appellees' testimony.

"Third: The trial court was in error when it overruled appellants' motion for new trial founded upon newly-discovered evidence material to his defense, since prior discovery of such new evidence was not due to a lack of diligence on the part of appellant."

In a supplemental brief, filed on the day of submission of the cause, June 16, 1949, they add points 1 and 3, as follows:

"First: the lower court erroneously awarded one half of the personal property to the appellees, when in fact all of such was owned by appellant by parol gift; or, upon the death of Willie, she owning at least all, except that shown to be contributed by Willie."

"Third: The trial court was in error when it overruled appellants' motion for new trial, based upon newly-discovered evidence material to his defense, since discovery prior to trial was not due to a lack of diligence on the part of appellant, and since such new evidence was so material to his defense in view of the judgment rendered that a different judgment was probable."

As indicated, the cause went to trial before the court without a jury, and not requests were made for the filing of findings of fact or law, nor were any filed; however, a statement of facts has been brought up with the record.

While the parties in their respective statements — both as to the general nature and result of the suit, and in detailed recitals under their points and counter-points on the appeal — differ between themselves in many material features, it is plain that, under settled rules of procedure and decision, this Court must presume — in support of the judgment of the trial court — that the evidence sustained each and all findings of fact not recited in its stated judgment, as were necessary to support the same. Nilsen v. Bonugli, Tex.Civ.App., 220 S.W.2d 178, 4 Texas Digest, Appeal and Error, and cited cases.

The appellants, contrary to the existence of such presumptions, and contrary to the assertions of the appellees in their answering brief, ground their substantive contentions under their quoted points upon two boiled down positions, to-wit: First: the personal property of Adeline Essex, the appellant, and Willie Hebert, the appellees' deceased predecessor in title, consisted of a savings account for $606.03, in the First National Bank of Houston, all of which belonged to her, whereas, second, their only real estate — which consisted of the 2½ lots of land, described supra — Willie Hebert had made a parol gift of to her before his death.

The record so brought here discloses uncontroverted facts, or at least those having some supporting testimony, showing these, among other features:

That the appellant and Willie Hebert, deceased, were husband and wife from July 13th of 1927 to August 2nd of 1943; that on August 6th of 1943 appellant sued him for divorce, which was granted September 7th of 1943, under a decree reciting the court's approval of an agreed property division between them, which vested the title to the lots of land here involved to him, and other lots to her; that thereafter, on September 10th of 1943, appellant intermarried with her present husband, Arthur Essex; that on November 3, 1943, slightly less than two months after the granting of such divorce and property settlement between them, Willie Hebert opened this savings account indicated in the First National Bank, of Houston, Texas, in the names of both himself and his then divorced wife, Adeline Hebert Essex; the passbook to such savings account appears to have been thereafter lost or stolen for a while, but later, on March 23rd of 1945, such account in the bank was closed, the balance therein then being $552.72; thereupon, a new savings account was opened, and such $552.72 balance was transferred thereto, the same being, as before, entered in the names of Willie Hebert and Adeline Hebert Essex.

The signature card upon the opening of such savings account was signed by both Willie Hebert and the appellant, and contained this provision:

"The bank shall not be required to make any payment to any of the undersigned or any other person or persons from the funds in this account without the presentation of the pass-book."

Willie Hebert died on July 3rd, of 1946, and shortly thereafter the passbook to such savings account was found among his effects, and was turned over to the appellant herein, who, on July 10th, of 1946, presented it to such First National Bank, and withdrew and appropriated to herself the $606.03 balance then shown on deposit...