Ex Parte Lipscomb

• Decision Date: 12 April 1922
• Docket Number: (No. 3630.)
• Citation: 239 S.W. 1101
• Parties: Ex parte LIPSCOMB.
• Court: Texas Supreme Court

Page 1101

239 S.W. 1101

Ex parte LIPSCOMB.

(No. 3630.)

Supreme Court of Texas.

April 12, 1922.

Habeas corpus proceedings by A. D. Lipscomb to procure his discharge from custody for contempt. Relator remanded to custody.

A. D. Lipscomb, H. M. Whitaker, E. E. Easterling, and Geo. C. O'Brien, all of Beaumont, for Lipscomb.

C. W. Howth, Oliver J. Todd, and Sonfield, Nall & King, all of Beaumont, for appellee.

CURETON, C. J.

The writ of habeas corpus was issued in this proceeding upon the application of relator, A. D. Lipscomb, complaining that he was restrained of his liberty by the sheriff of Jefferson county under an order and commitment of the Fifty-Eighth district court of that county, issued on January 14, 1922. The case was heard in this court on February 1, 1922, on an agreed record. The relator was committed for contempt for refusing to answer certain questions propounded to him as a witness. The court at the time was engaged in the trial of the case of H. Lawson Gray v. Thomas H. Langham and Others, a suit in the ordinary form of trespass to try title, to recover a portion of the J. S. Johnson one-fourth league survey in Jefferson county, Tex., and for rents and damages. The agreed record states additional proceedings as follows:

"To this petition the defendants pleaded the general issue, not guilty, and the several statutes of limitation. And for cross-action pleaded that the deed under which the plaintiff H. Lawson Gray claimed title to said land from Sam Lee Gray to him of date June 23, 1911, although absolute as to form, was in fact a mortgage only and intended by the parties thereto as a mortgage only, given by said Sam Lee Gray to the plaintiff to secure the said plaintiff in the collection of certain sums of money claimed to have been advanced by said H. Lawson Gray to said Sam Lee Gray and certain other advancements to be made in the future; and that in pursuance of said agreements and to give written evidence thereof the said plaintiff and said Sam Lee Gray entered into a written contract or declaration of trust contemporaneously with said purported deed and as a part of the same transaction, by the terms of which it was mutually agreed in writing that said conveyance constituted only a security for indebtedness, and that the said Sam Lee Gray could at any time pay to the plaintiff any sum of money then due and receive reconveyance of said property, which said agreement, although made, executed and delivered to the said Sam Lee Gray, has never been recorded; and that said contract passed into the hands of the plaintiff as representing the estate of his brother Sam Lee Gray, or was destroyed or suppressed by the plaintiff; and the defendants notified the plaintiff to produce the original on the trial, otherwise secondary proof of its contents would be made.

"The plaintiff by a supplemental petition denied all the facts and allegations contained in said answer and cross-action of defendants.

"After the pleadings were duly read, the plaintiff offered in evidence a general warranty deed from Sam Lee Gray to the plaintiff, H. Lawson Gray, dated June 23, 1911, filed for record June 28, 1911, and recorded in Volume 123, page 614, of the deed records of Jefferson county, Tex., conveying the land involved in this suit; and for the purpose of showing common source only, offered in evidence a general warranty deed from Sam Lee Gray to the defendants, conveying the same land, dated the 26th day of June, 1911, and filed for record June 26, 1911, in Volume 123, page 612, of the deed records of Jefferson county, Tex. Thereupon the plaintiff rested. The defendants then offered in evidence for the purpose of showing title a general warranty deed from Sam Lee Gray to the defendants, dated June 26, 1911, filed for record June 26, 1911, recorded in Volume 123, page 612, of the deed records of Jefferson county, Tex.; and thereupon the defendants, for the purpose of showing the deed to the plaintiff from Sam Lee Gray was a mortgage, called the witness A. D. Lipscomb," who was sworn and took the witness stand.

The relator is an attorney, and in the preparation of the deed of date June 23, 1911, from Sam Lee Gray to H. Lawson Gray, was attorney for H. Lawson Gray. Many questions were propounded to him by counsel for the defendants, the purpose of which was to elicit testimony to the effect that, at the time he prepared the deed from Sam Lee Gray to H. Lawson Gray to the land in controversy, there was prepared for and executed by the two Grays an additional instrument, which would show that the deed, though absolute on its face, was in fact a mortgage. Relator answered that he did prepare the deed dated June 23, 1911, from Sam Lee Gray to H. Lawson Gray, which as stated above, was placed of record a few days thereafter; but he declined to answer any question relative to the additional instrument inquired about, and declined to identify a purported copy thereof submitted to him.

We deem it unnecessary to set out the questions asked or further describe the copy of the instrument presented to the witness for identification.

When relator took the witness stand, and before any questions had been propounded to him, he asked that he be excused from testifying, because he thought he would be called on to testify as to matters which were confidential between himself and his former client, H. Lawson Gray. The court refused this request, and the questions referred to were propounded to him. Present counsel for the plaintiff, H. Lawson Gray, also objected to the questions and the answers sought, on the ground that the answers would necessarily disclose privileged communications between H. Lawson Gray and relator while the latter was his attorney. The objections, however, did not go to the execution of the deed, absolute on its face, from Sam Lee Gray to H. Lawson Gray, which had been recorded, and which was introduced in evidence by the plaintiff, H. Lawson Gray, in the action before the court. The refusal of the relator to answer was limited to questions relative to the additional instrument inquired about. As to this additional instrument, the relator stated his position as follows:

"I can state my position at this point satisfactorily—it seems to me I can. I claim my privilege not to answer that question, because the only open matter that was involved in that service to my client, Lawson Gray, was the execution of the deed referred to. That was all that I was called upon by him to draw up, I mean. Whatever else was done was on my own suggestion and at my request, and was purely confidential; and, in my belief, it would not have been executed at all or consented to by Lawson Gray, except upon my advice and insistence, and that was given because of the relation of attorney and client; and I was advising him very confidentially, because of his relationship to his younger brother, whom I regarded as being capable of contracting all right, but as being of that character of mind and degree of competency which renders one easily the subject of undue influence. For that reason, I requested the execution of the separate agreement, for my own satisfaction; and everything connected with it was of the most purely confidential nature as between attorney and client. I feel that I am under obligation to refuse testimony on any point in regard to it. Anything that I could say about it would probably be misunderstood, and certainly would have to be incomplete. It would not, by any means, be the whole truth, because going into everything necessarily would involve the disclosure of matters of confidence between attorney and client."

The relator also stated that on previous trials he had gone into the matter inquired about more or less, but now it was his deliberate judgment that it was improper for him to have done so, and he now insisted on the privilege.

The trial court overruled all the objections made, holding the instrument presented to the witness for identification was not protected by the law of privileged communications, for the reason that it had been executed, and was a part of the same transaction in which the deed, absolute on its face, from Sam Lee Gray to H. Lawson Gray, previously placed of record and offered in evidence by H. Lawson Gray, was executed. The court directed the witness to answer the various questions propounded by counsel for defendants, and, upon his refusal, adjudged him guilty of contempt. The court, in the judgment finding relator guilty of contempt, found that the testimony sought to be elicited from relator was on one of the vital questions involved in the suit, and provable only by the evidence of the relator. Because of his refusal to answer, the trial of the case was suspended, the jury discharged, and a mistrial entered.

The high standing of relator and his respectful attitude toward the court are unquestioned. He declined to answer the questions in a firm, positive, but very respectful manner, and for the reason only that he was sincerely insisting upon what he believed to be his legal right and duty. Apparently he was under the impression that the question of privilege was one personal to him as well as to his former client. To this we cannot assent. The law of privileged communications between attorney and client is that the privilege is that of the client. He alone is the one for whose protection the rule is enforced. Smith v. Boatman Savings Bank, 1 Tex....