Fry v. Tucker

• Decision Date: 23 April 1947
• Docket Number: No. A-1101.,A-1101.
• Citation: 202 S.W.2d 218
• Parties: FRY et al. v. TUCKER et al.
• Court: Texas Supreme Court

202 S.W.2d 218

FRY et al. v. TUCKER et al.

No. A-1101.

Supreme Court of Texas.

April 23, 1947.

Rehearing Denied June 11, 1947.

Error to Court of Civil Appeals for Sixth Supreme Judicial District, Cherokee County.

Appeal by Frank A. Carpenter and others from an order of county probate court denying their motion to set aside appointment of J. R. Hill, as administrator de bonis non of the estate of Francis Fry, deceased, certiorari by Mrs. Fannie Tucker and others to set aside such appointment, and appeal by Mrs. Fannie Tucker and others from an order of the probate court appointing Fred Fry temporary administrator of the estate of Francis Fry, deceased. The cases were tried jointly and a judgment was entered ordering the administration of decedent's estate closed and the appointments of administrators de bonis non and temporary administrator set aside. The judgment was affirmed in part and reversed and remanded in part by Court of Civil Appeals, on appeal by Fred Fry, individually and as temporary administrator of the estate of Francis Fry, deceased, and others, 197 S. W.2d 375, and Fred Fry, individually and as temporary administrator of the estate of Francis Fry, deceased, and others bring error.

Judgment of Court of Civil Appeal affirmed in part and reversed and remanded in part.

Simon, Wynn, Sanders & Jones, of Fort Worth, and Vinson, Elkins, Weems & Francis, Wm. A. Vinson, C. E. Bryson, W. H. Francis, Jr. and P. Harvey, all of Houston, for Fry and others.

Summers A. Norman, of Jacksonville, J. W. Lockett, DeLange, Beman & Hudspeth, Albert J. DeLange, Kayser, Liddell & Austin and Dwight Austin, all of Houston, Gerald L. Johnson, of Dallas, Norman J. Bering, Abe Wagner, Fountain, Cox & Gaines and Joyce Cox, all of Houston, Donald Campbell, Victor C. Mieher, L. A. Thompson and Harry D. Paige, all of Tulsa, Okl., for Tucker and others.

SHARP, Justice.

This appeal involves three separate suits, which were by the trial court, over the objection of certain petitioners, ordered jointly tried. The three suits involved certain probate orders in the Probate Court of Cherokee County in a cause numbered 17, and styled Estate of Francis Fry, Deceased, which on appeal to the District Court of Cherokee County were set aside and the administration on the estate ordered closed. The cases were brought from the probate court to the district court by three proceedings: (1) Writ of certiorari filed by Mrs. Fannie Tucker et al. to the probate court's order appointing J. R. Hill administrator de bonis non, No. 15,748; (2) appeal by Stanolind Oil and Gas Company et al. from the probate court's order refusing upon motion to set aside the appointment of J. R. Hill as administrator and to order the estate closed, No. 15,748-A; and (3) appeal by persons who contested the continuance of administration in the first two proceedings from the probate order appointing Fred Fry temporary administrator upon Mr. Hill's death, and refusing to close the administration, No. 15,748-B.

Based upon the findings of the jury, the trial court entered judgment that administration on the estate was closed. An appeal was made, and the Court of Civil Appeals affirmed the judgment of the trial court in Cause No. 15,748-B, but reversed and remanded Causes Nos. 15,748 and 15,748-A, because the trial court judge's wife was a cousin of the wife of C. R. Waites, one of the parties involved in the suit. Tex.Civ.App. 197 S.W.2d 375.

The controlling question presented here is whether the Court of Civil Appeals was correct in holding that the trial judge was disqualified to sit in the trial of Causes No. 15,748 and No. 15,748-A; and, if so, whether this disqualification extends to Cause No. 15,748-B, jointly tried with Causes No. 15,748 and No. 15,748-A.

Many litigants are involved in this suit, and the basis of the controversy is the dispute between two groups over title to land in Harris County. One group, who will be referred to as the Tucker group, claim title under conveyances by persons asserted to be the sole heirs of Francis Fry and his son, Sam Houston Fry. The other group, referred to here as the Fry group, claim to be the paternal heirs of Francis Fry and Sam Houston Fry.

Francis Fry, a citizen of Cherokee County, died intestate in 1856, and his son died a few years thereafter. A month after the death of Francis, his brother-in-law was appointed and qualified as administrator of the estate; and he subsequently died in 1895. In March, 1942, J. R. Hill made application and was appointed by the Probate Court of Cherokee County administrator de bonis non of the estate, and he intervened in various trespass to try title actions then pending in Harris County between members of the above-mentioned two groups. The order of the probate court appointing Hill administrator de bonis non of the estate of Francis Fry, deceased, gave rise to the proceedings which are now before us.

Certain members of the Tucker group filed a motion in the probate court to set aside the appointment of Hill and to declare the administration on the estate closed. This motion was resisted by all members of the Fry group, except Fred Fry as temporary administrator, and he was not then serving in that capacity. Among the several hundred who joined in the contest of this motion was C. R. Waites, whose wife undisputedly was related by affinity within the third degree to the trial judge of the district court. The motion was denied by the probate court, and an appeal was taken to the district court.

Before the appeal papers reached the district court, other members of the Tucker group petitioned the district court for a writ of certiorari to review the action of the probate court in appointing Hill administrator. The sole respondent named in this petition was Hill, as administrator de bonis non. This is the second suit herein involved.

The third suit was occasioned by the death of J. R. Hill in November, 1944. An application was filed by Fred Fry in the probate court in which he sought to be appointed administrator de bonis non of the estate of Francis Fry, or, in the alternative, temporary administrator pending the disposition of the contest over the appointment of J. R. Hill. The latter request was granted, and an appeal perfected from this order appointing Fred Fry temporary administrator.

With these three cases in the district court, a motion to consolidate them was overruled by the trial judge, but they were ordered to be jointly tried; and thereafter the court made an order numbering them as follows: the certiorari case, No. 15,748; the motion proceeding, No. 15,748-A; and the application for appointment of temporary administrator, No. 15,748-B. On motion for new trial, the relationship of the trial judge to Mrs. Waites was raised for the first time. The motion for new trial was overruled, but on appeal to the Court of Civil Appeals the trial judge was held disqualified in Case No. 15,748 (the certiorari case) and in Case No. 15,748-A (the motion case), the same being reversed and remanded. Case No. 15,748-B, however, was affirmed.

Some of the orders of the trial judge evidence his attempt to keep the proceedings of the three cases separate. However, a single judgment was rendered in the three cases, and it clearly appears, when the entire record is considered, that the intention to keep the proceedings in the three cases separate was departed from in the judgment rendered.

The judgment which was entered, after stating the names and numbers of each of the three suits, divided the parties into seven groups, and stated in which cause the said groups by their attorneys appeared. The First and Third groups were members of the Tucker group, and the other groups were comprised of various members of the Fry group; the Second group was Fred Fry as temporary administrator; the Fourth and Fifth groups were the numerous members of the Fry group; the Sixth group was a surety on a probate bond; and the Seventh group were the unknown heirs of various persons.

The judgment recites the personal appearance of C. R. Waites and the other petitioners in Causes No. 15,748-B and No. 15,748. C. R. Waites is expressly named as a party of the Fourth group, and the judgment, after setting out the names of all the parties in that group, recites that the parties in the Fourth group "are appellees in cause numbered 15,748-A and who appeared also in causes numbered 15,748 and 15,748-B." The judgment recites that those in the Second, Fourth, Fifth, Sixth, and Seventh groups are designated as applicants, and those in the First and Third groups as contestants. The judgment, after reciting that the law and facts are with the contestants, concludes as follows:

"That the judgment is entered as the judgment of the Court in each of the above captioned and numbered Causes, and a copy thereof shall be certified to the Probate Court of Cherokee County, for its observance.

"The costs of each of the above proceedings are taxed against the persons in Groups Second, Fourth, Fifth and Sixth, for which let execution issue."

The effect of the recitals in the judgment rendered in the three cases is obvious. C. R. Waites is admittedly in the Fourth group. All of the other petitioners are in one of the groups mentioned in the judgment, and a personal judgment is rendered against each of them for the costs in each of the three cases. The judgment decreed that all of the persons mentioned in the Second, Fourth, Fifth, and Sixth groups were taxed with all of the costs in Causes Nos. 15,748, 15,748-A, and 15,748-B. This means that a personal judgment was taken against C. R. Waites in those causes. The judgment decreed that C. R. Waites was not an heir of Francis Fry, nor of his son Sam Houston Fry, and it can be urged that there was an adjudication of heirship against C. R. Waites and the other petitioners, and in favor of the respondents, in each of the three causes. It was also ordered that the administration of...