Farmers' State Bank v. Jameson

• Decision Date: 12 December 1928
• Docket Number: (No. 916-4997.)
• Citation: Farmers' State Bank v. Jameson, 11 S.W.2d 299 (Tex. 1928)
• Parties: FARMERS' STATE BANK OF BURKBURNETT et al. v. JAMESON et al.
• Court: Texas Supreme Court

11 S.W.2d 299

FARMERS' STATE BANK OF BURKBURNETT et al. v. JAMESON et al.

(No. 916-4997.)

Commission of Appeals of Texas, Section B.

December 12, 1928.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Mrs. M. M. Jameson and others against the Farmers' State Bank of Burkburnett and others. Judgment for defendants was reversed, and case was remanded by the Court of Civil Appeals (299 S. W. 458), and defendants bring error. Judgment of the Court of Civil Appeals affirmed.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, and Benson & Benson, of Bowie, for plaintiffs in error.

Fitzgerald & Hatchitt, Carrigan, Britain, Morgan & King, and H. R. Wilson, all of Wichita Falls, and Donald & Donald, of Bowie, for defendants in error.

SHORT, P. J.

The plaintiffs in error, who were the appellees in the Court of Civil Appeals and the defendants in the district court, are the Farmers' State Bank of Burkburnett, Perry Browning, W. H. Anchor, and C. McCall, while the defendants in error, who were the appellants in the Court of Civil Appeals and the plaintiffs in the district court, are Mrs. M. M. Jameson, the surviving widow of Sherwood Jameson, deceased, and their minor children, Hazel, Helen, and Dorothy Jameson. After overruling all demurrers filed by the defendants to the petition of Mrs. Jameson and her children, which was duly verified by oath, a jury was impaneled, and the testimony offered by Mrs. Jameson and her children was heard; whereupon the district judge instructed the jury peremptorily to find for the defendants. Upon due appeal from this judgment to the Court of Civil Appeals, that court reversed and remanded the case to the district court for further proceedings, and in its opinion fully stated the pleadings of all the parties and the testimony offered by the original plaintiffs, a restatement of which by us, in view of that fact, being thought unnecessary. 299 S. W. 458.

The plaintiffs in error in their application for a writ of error which has been granted by the Supreme Court make the following preliminary statement:

"The defendants in error herein filed this suit to set aside a judgment of the District Court of Montague County, which upon its face showed it to be an agreed judgment entered into by the attorneys of all parties approving the same and which involved the title to certain mineral interests in property fully described in the original petition of plaintiffs in the court below.

"As a ground for setting the judgment aside the defendants in error alleged failure of the service of citation and further alleged that the indebtedness forming the basis of the entry of the judgment sought to be set aside did not in fact exist and therefore, they claimed a meritorious defense to the original cause of action upon which the judgment was based. As a further claim they said the instrument transferring the property upon which the judgment was based was intended as a mortgage and they tendered payment of the amount due and asked for the return of the property.

"The trial court in this case instructed a verdict for the plaintiffs in error on the theory that no meritorious defense was proven and the judgment showing on its face the appearance of all parties, such defense would be necessary to entitle the parties to set such judgment aside.

"The Court of Civil Appeals reversed the judgment of the trial court, holding that (a) in a direct attack on a judgment wherein it was shown by the testimony of the party seeking to set same aside that such party was not served with citation, it was not necessary to show a meritorious defense; (b) that the evidence of the defendant in error Mrs. Jameson to the effect that when she executed the transfer of the mineral interests in settlement of the alleged indebtedness, no notes or other evidences of indebtedness were delivered to her, taken together with the plaintiff in error McCall's failure to prove the existence of the indebtedness, was sufficient to prima facie make a case entitling the judgment to be set aside holding that such evidence prima facie showed a meritorious defense."

The record discloses that Sherwood Jameson received injuries from being struck on the streets of Wichita Falls by an automobile February 9, 1923, and six days thereafter died as the result of such injuries. He owned, at the time of his death, mineral rights in certain lands located in Montague county, shown by some of the testimony to be of the market value of $15,000. At the time the defendants in error filed this suit, this ownership which had been inherited by them from the husband and father had apparently been lost to them, and had been acquired directly or indirectly, either by virtue of ownership or liens given to secure an alleged indebtedness, by the plaintiffs in error, and the value of the interest had increased from $15,000 to $25,000. Neither the wife nor the children had received anything of value from the plaintiffs in error, or any of them, for this property inherited by them, except a release of certain claims against the estate of Sherwood Jameson, the validity of which at the time of his death was denied by the defendants in error. The evidence of this apparent change of possession of this property from the defendants in error to some, if not all, of the plaintiffs in error, is a certain judgment rendered by the district court of Montague county, numbered on the docket 6635 at the January term, 1926, wherein the plaintiff in error C. McCall was plaintiff and the other defendants, except the bank, together with the defendants in error in this case, were defendants, and the Farmers' State Bank of Burkburnett was an intervener, the effect of which was to sustain all the claims of all the parties with reference to the matter in controversy, except that of the defendants in error, and in which it was declared that C. McCall had purchased from Mrs. Jameson, as community survivor of her husband, all the interest which her husband had in the lands described in the petition, in consideration that McCall would pay the debts of her husband; and in which it was also declared that McCall had procured an instrument in the form of an assignment, but in fact a mortgage, of the property in dispute on the 14th of December, 1920, but that by mutual mistake a lesser interest than the husband owned was conveyed in that instrument, which the judgment reformed, and, as stated, declared that the instrument assigned all the interest of the husband. It also established, in addition to the $4,500 claimed by McCall to be due him and his bank, he being the president, claims against the estate of the husband in favor of Perry Browning for a certain sum and in favor of W. H. Anchor for a certain sum, aggregating several thousand dollars, the whole indebtedness aggregating more than $10,000 with accrued interest. It provided that, in case the land should be sold by McCall for a sum sufficient to pay all these debts, then $1,000 should be divided among the minor children, the surplus, if any, to belong to McCall. This was an agreed judgment signed by Benson & Benson, attorneys for McCall, Weeks, Morrow, Francis & Hankerson for Perry Browning, W. H. Anchor, and the Farmers' State Bank of Burkburnett, and R. E. Taylor, attorney for Mrs. Jameson and her children.

It is alleged by the defendants in error that the plaintiffs in error had conspired among themselves to defraud this widow and her children, and, in pursuance of this conspiracy, had procured from the district court the entry of this judgment without her knowledge that any such suit was pending, and without her having been cited to appear and answer the demands of the plaintiff McCall or the other parties, and without her having been represented by any attorney employed by her to appear for her in that suit. She also alleged in her petition that she knew that her husband owned this interest in these lands, and knew that he had been doing business with the plaintiff in error bank, but she did not know her husband owed any debts to the bank or any one else, and she so testified. No testimony was offered by the plaintiffs in error. She testified that McCall, acting for himself and the bank of which he was the president, told her that her husband was due him about $2,500, and was owing the bank $2,000, which statement she believed. She also testified that the instrument which she executed, while in the form of an absolute conveyance or assignment, was intended as a security for the payment of these sums of money. She testified that no papers were exhibited to her and no explanation made of the mutual mistake which the judgment in cause No. 6635 found to have been a mutual mistake and reformed so as to increase the interest assigned in the document executed by the husband. Nothing was said about the claims of Browning and Anchor, or either of them, and it is apparent that Mrs. Jameson received the impression from what McCall told her that her husband only owed him and the bank in the sums above mentioned. In McCall's answer to the petition in this case he alleged that the husband owed his bank $970, and owed him approximately $3,500, but that the exact amount was unknown to him at the time he filed his answer, which was July 5, 1926, while the date when he made these representations to Mrs....