Fisher v. Continental Illinois Nat. Bank & Trust Co. of Chicago

• Decision Date: 31 January 1968
• Docket Number: No. 65,65
• Citation: 424 S.W.2d 664
• Parties: Thomas Hart FISHER, Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 664

424 S.W.2d 664

Thomas Hart FISHER, Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Appellee.

No. 65.

Court of Civil Appeals of Texas Houston (14th Dist.).

Jan. 31, 1968.

Rehearing Denied Feb. 28, 1968.

Robert L. Dabney, Jr., Austin & Dabney, Houston, for appellant.

Frank G. Harmon, Thomas E. Berry, C. H. McCall, Thad T. Hutcheson, Jr., Baker, Botts, Shepherd & Coates, Houston, for appellee.

TUNKS, Chief Justice.

This is an appeal from the order of the trial court dismissing the proceeding pending in that court which dismissal was occasioned by the appellant's refusal and failure to respond to a commission to take his deposition and a subpoena duces tecum. The facts and procedure leading up to the order of dismissal were as follows:

On December 11, 1965, Alice B. Atwood, a resident of Chicago, Illinois, died. She left a will in which one Michael DeBella was named beneficiary and the appellee, Continental Illinois National Bank & Trust Company of Chicago, hereinafter sometimes called Continental Bank, was named executor.

On January 14, 1966, the Atwood will was filed for probate in Cook County, Illinois. On April 4, 1966, that will was admitted to probate, the Continental Bank qualified as executor of the estate.

On May 27, 1966, Edwin K. Atwood, brother of the deceased, Alice B . Atwood, filed application in the Probate Court of Harris County, Texas, for an ancillary Texas administration of the estate of said decedent. The application for ancillary administration filed in Harris County, Texas, was filed by a Houston attorney who was authorized to so act by the appellant, Thomas Hart Fisher, who in turn, in giving such authority, was acting as the attorney for Edwin K. Atwood.

The original application for ancillary administration filed in the Probate Court of Harris County, contained a recitation to the effect that Alice B. Atwood had died without leaving any 'valid will.'

On June 28, 1966, the Probate Court of Harris County orally announced that the application for ancillary administration was granted and designated River Oaks Bank & Trust Company of Houston, Texas, as temporary administrator. On July 5, 1966, the order so appointing the River Oaks Bank & Trust Company as temporary administrator was signed by the judge of the Probate Court in Harris County, Texas.

On July 5, 1966, Continental Bank, without knowing of the fact that the temporary administration was pending in the Probate Court of Harris County, filed application in the County Court of Kennedy County for the probate of the will which Alice B. Atwood had left. On July 18, 1966, the County Court of Kennedy County admitted that will to probate. On July 27, 1966, Continental Bank qualified as executor under the will in the Kennedy County proceedings.

On November 9, 1966, Edwin K. Atwood wrote a letter to his Houston attorney requesting that he cause River Oaks Bank & Trust Company to withdraw as administrator of the estate of Alice B. Atwood in favor of Continental Bank.

On November 14, 1966, Thomas Hart Fisher filed in the Probate Court in Cook County, Illinois, a contest of the Alice B. Atwood will which had been admitted to probate in that court. Fisher's contest was based on the ground that Alice B. Atwood did not have testamentary capacity at the time of executing the will which had been admitted to probate and his claim of interest in the estate was based on an earlier will executed by the decedent wherein he, Thomas Hart Fisher, was named beneficiary.

On or about December 1, 1966, Continental Bank and its attorneys apparently learned for the first time of the pendency of the administration proceeding in the Probate Court of Harris County. They, on that date, filed a proceeding in the Probate Court of Harris County, Texas, asking that Court to make a final determination of the proposition that venue in the estate properly lay in Kennedy County rather than in Harris County and for the transfer of the proceedings to Kennedy County and for the dismissal of the proceeding pending in the Harris County Probate Court.

On December 9, 1966, the Harris County Probate Court entered its order making a final determination to the effect that venue of the matter properly lay in Kennedy County and transferring the proceeding to the Probate Court of that County.

Though his participation in the proceeding up to that time had been in the capacity of an attorney acting as counsel for Edwin K. Atwood, on December 19, 1966, the appellant, Thomas Hart Fisher, entered the proceeding as a party. Fisher claimed to be a proper party because of his interest in the estate growing out of the earlier will wherein he was designated a beneficiary. As such an interested party, and as being aggrieved by the Probate Court's order of December 9, 1966, determining venue to be in Kennedy County and transferring the matter to that County, Fisher perfected an appeal to the 113th District Court of Harris County, Texas. It was that case, concerned with Fisher's appeal of the order of the Probate Court transferring the administration to Kennedy County, which was dismissed by the trial court for the reason and in accordance with the procedure hereinafter set forth, and which is the subject matter of this appeal.

On January 26, 1967, the Harris County Probate Court granted the motion of Continental Bank to remove River Oaks Bank & Trust Company as administrator and by the same order, appointed Continental Bank as temporary administrator, directing that River Oaks Bank & Trust Company pay over to it such funds, if any, of the estate which it had on hand. Thomas Hart Fisher, again alleging himself to be an aggrieved party, perfected an appeal from that order to the 127th District Court of Harris County, Texas. That case also was dismissed by the trial court and a separate appeal is pending in this court from that order of dismissal.

Still a third suit was instituted in the District Court of Harris County, Texas, involving the same parties and the same estate. That third suit was a mandamus proceeding filed in the 157th District Court of Harris County, Texas, by Thomas Hart Fisher, as petitioner, seeking a mandatory order requiring the judge of the Probate Court of Harris County, Texas, to vacate his orders of January 26, 1967, wherein he had determined that the Kennedy County Probate Court had venue of the estate which is the subject matter of this litigation and all other orders thereafter entered by the judge of the said Harris County Probate Court. That suit, too, was dismissed by the trial court and it, too, is the subject matter of another appeal pending in this court.

On February 28, 1967, the attorneys for the appellee, Continental Bank, filed application in the 157th District Court of Harris County, Texas, for commission to take the oral deposition of Thomas Hart Fisher, the plaintiff in the mandamus suit pending in that court, and, in such application, recited its intention to procure the issuance of a subpoena duces tecum to Fisher, requiring him to produce certain documents. The date and place for the taking of said deposition was recited to be at 10:00 o'clock a.m. on March 11, 1967, at the office of the Continental Bank's attorneys in Houston, Texas.

On March 1, 1967, the attorneys for Continental Bank filed in the case pending in the 113th District Court of Harris County, Texas, a similar request for issuance of a commission to take the oral deposition of Fisher, and gave notice of the intention to request the issuance of a similar subpoena duces tecum and fixed the time and place of taking of the oral deposition as of the same date and place.

On March 16, 1967, Continental Bank's attorneys filed in the case pending in the 127th District Court of Harris County, Texas, a similar request for the issuance of a commission to take Fisher's deposition and notice of intention to request a subpoena duces tecum, fixing the date of the deposition at March 28, 1967, and the place at the office of the Continental Bank attorneys. The subpoenas duces tecum issued pursuant to the commissions requested on February 28th and March 1st, were served on the local counsel for Thomas Hart Fisher as authorized by Rule 202, Texas Rules of Civil Procedure. On March 8, 1967, appellant's attorneys filed a motion to quash the subpoenas, to order that the deposition of their client not be taken, or, in the alternative, that the deposition be taken by written interrogatories at the place of his residence in Florida. On March 9, 1967, the Honorable Ben Wilson, sitting as Judge Presiding over the Civil District Courts of Harris County, Texas, and as such authorized to rule on certain ancillary matters pending in any of the Civil District Courts of Harris County, overruled the appellant's motion to quash, to order that the deposition not be taken or that the deposition be taken at the place of the appellant's residence in Florida. On March 23, 1967, a similar motion was made by appellant attacking the commission and subpoena issued pursuant to the bank's request on March 16, 1967.

The appellant failed to appear for the taking of the deposition set for March 11, 1967. On March 14, 1967, the appellee made a motion to dismiss the cases in which the commissions for the taking of that deposition had been issued. That motion to dismiss was presented to the Honorable Wilmer Hunt, sitting as Presiding Judge on March 17, 1967. Pursuant to the hearing that followed, Judge Hunt entered an order to the effect that unless the appellant appeared on March 29, 1967, for the giving of his deposition, and that unless he responded to the subpoena duces tecum theretofore served on his attorneys, all three of the cases then pending in the District Courts of Harris County, Texas concerning the estate of the decedent, Atwood, would be dismissed.

On March 20, 1967, the appellant, pursuant to Rule 167, T.R.C.P., filed a motion to require the appellee to produce...