Garlington v. Wasson

• Decision Date: 08 April 1955
• Docket Number: No. 3153,3153
• Citation: 279 S.W.2d 668
• Court: Texas Court of Appeals
• Parties: J. S. GARLINGTON et al., Appellants, v. A. L. WASSON et al., Appellees.

Page 668

279 S.W.2d 668

J. S. GARLINGTON et al., Appellants, v. A. L. WASSON et al., Appellees.

No. 3153.

Court of Civil Appeals of Texas, Eastland.

April 8, 1955.

First Motion for Rehearing Denied May 13, 1955.

Second Motion for Rehearing Denied June 3, 1955.

Donald & Donald, T. B. Coffield, Bowie, for appellants.

Thomas, Thomas & Jones, Big Spring, Perkins & Bezoni, Midland, for appellees.

GRISSOM, Chief Justice.

J. S. Garlington and son, Donald Garlington, have appealed from a judgment denying them recovery against A. L. Wasson and N. H. Reed. This suit was filed on June 22, 1948, as a suit in trespass to try title, by J. S. Garlington and wife against Wasson and wife and N. H. Reed. Appellees filed a plea in abatement to the effect that J. S. Garlington should be compelled to sue through a guardian because he was then of unsound mind, being afflicted with 'suititus.' The transcript does not show when this plea was filed. It does show that Mrs. J. S. Garlington died and on November 9, 1953, an amended petition and plea in intervention was filed by Donald Garlington, individually and as next friend for his father, J. S. Garlington, who was alleged to be of unsound mind. It was in the nature of a bill of review to set aside a judgment of the District Court of Howard County in cause number 3807, rendered against J. S. Garlington and wife, on May 24, 1941, wherein judgment for title and possession of the four sections of land in controversy was rendered for A. L. Wasson. The grounds alleged for setting aside the 1941 judgment were (1) that J. S. Garlington was of unsound mind and had been since before signing a deed of trust to secure a loan made to Garlington by Wasson in September, 1937, and that Wasson and N. H. Reed, who purchased the land from Wasson, knew, or should have known, thereof but did not inform the court of his condition; (2) because the deed of trust sale under which Wasson claims title was void because made on January 2, 1940, between 10:00 A.M. and 4:00 P.M., although an order discharging the land in controversy from a bankruptcy proceeding provided J. S. Garlington should have until 'on or before January 2, 1940, to pay Wasson and (3) because J. S. Garlington was of unsound mind and unable to present other alleged defenses to Wasson's suit. Defendants excepted to said bill of review because there was no allegation that excused the long delay in bringing this suit to set aside a judgment rendered in May, 1941. In this connection appellees alleged that Mrs. J. S. Garlington died intestate in September, 1951, and Donald Garlington, who inherited her interest, if any, did not bring this suit until November, 1953, and that plaintiffs should be now precluded from asserting said cause of action. Defendants excepted on the ground that defendants had no duty to care for the interest of J. S. Garlington, even if he was insane, because there was no allegation that Mrs. Garlington was insane and if Garlington was of unsound mind no reason was alleged excusing Mrs. Gardington or Donald from sooner asserting his mental incapacity, nor was there any allegation that the Garlingtons were not represented by counsel who could have but did not present any defense and that their claim of fraud was asserted too late, because the defenses now asserted could have been presented earlier by Mrs. Garlington, Donald, or their counsel and the cause of action for setting aside the 1941 judgment was barred by the statutes and laches and the 1941 judgment was res adjudicata. They excepted because the facts alleged did not constitute a meritorious defense to either the sale under Wasson's deed of trust or to the suit that terminated in the 1941 judgment. Defendants alleged the Garlingtons employed an attorney who had the reputation of being a capable lawyer; that said lawyer filed an answer in cause 3807 in the District Court of Howard County and appeared therein as counsel for the Garlingtons and appealed from said judgment to this court, the Supreme Court of Texas and the United States Supreme Court; that if Garlington was of unsound mind, his wife and son and counsel could have, but did not, present such defense and it was thereby waived. Defendants alleged in detail the many legal proceedings engaged in by Garlington and wife during the period of Garlington's alleged insanity and the many attorneys who represented them; that the Garlingtons appeared in person and took an active part therein, consulted with their attorney, furnished evidence and testified, and defendants cited their many appeals and alleged that Garlington's insanity was never asserted and that N. H. Reed purchased the land without notice and for a valuable consideration.

On May 17, 1940, J. S. Garlington and wife, acting through their attorney, filed a plea in abatement in cause number 3807 in the District Court of Howard County to the effect that the four sections were within the exclusive jurisdiction of the United States District Court in bankruptcy and that the District Court of Howard County had no jurisdiction thereof and that Wasson was claiming said land as purchaser at the sale under Wasson's deed of trust and that said sale was void because sold before midnight on January 2, 1940, under the bankruptcy court's order discharging the land from said proceeding, Garlington had until midnight to pay Wasson. The Garlingtons prayed that the trustee's deed to Wasson be cancelled and that they be awarded title and possession. On January 7, 1941, Wasson filed an amended petition in cause 3807 in the District Court of Howard County in which he alleged the execution by J. S. Garlington and wife of the deed of trust on said land in September, 1937, to secure Wasson's loan of $5,000, sale under said deed of trust and Wasson's purchase at the trustee's sale. Wasson alleged the bankruptcy court had rendered a final judgment discharging the land from control of the court. Wasson prayed for judgment awarding him possession of the land, decreeing that the foreclosure of his deed of trust lien was valid and that he had the fee simple title to the land. On May 24, 1941, the District Court of Howard County in case 3807 rendered judgment awarding title and possession to A. L. Wasson. This is the judgment Donald and J. S. Garlington seek in the present suit to set aside. Said judgment expressly declared the sale under Wasson's deed of trust was valid and that the trustee's deed conveyed title to Wasson. Said judgment recites that J. S. Garlington and wife appeared in person and by their attorney, announced ready for trial, waived a jury and submitted the case to the court. The Garlingtons introduced in the present case their answer in cause 3807, signed by their attorney, in which they alleged, among other things, that the land was within the sole jurisdiction of the Federal Court and the state court had no jurisdiction of the subject matter. Evidence was introduced by them in the trial of cause 3807 in support of said plea. The judgment in cause 3807 recites that the Garlingtons excepted and gave notice of appeal to this court. They did appeal to this court but their appeal was dismissed on February 13, 1942, because J. S. Garlington and wife had not filed briefs. That opinion was not published. The Supreme Court of Texas, on April 22, 1942, refused the Garlingtons' application for a writ of error and the Garlingtons applied for a writ of certiorari which was denied by the Supreme Court of the United States on January 4, 1943.

In September, 1940, J. S. Garlington and wife, through the same counsel who represented them on the trial of cause 3807, sought another continuance of case 3807 because they could not withdraw the original papers in the bankruptcy proceeding to introduce in support of their plea in abatement. This motion was overruled. But, during that trial of cause 3807, J. S. Garlington and wife introduced copies of the bankruptcy proceedings in support of their plea in abatement. Thereupon, the Court granted the Garlingtons a continuance. On October 19, 1940, Wasson filed a petition for mahdamus in this court to compel the District Judge to enter judgment or again try the case number 3807 and render judgment. This court refused to grant said petition for mandamus saying we presumed the District Judge would proceed to try the case 'as soon as the jurisdiction of the Federal Court has been relinquished over the property involved.' Wasson v. Collings, Judge, Tex.Civ.App., 145 S.W.2d 915, 917.

On January 7, 1941, Wasson repleaded and alleged the United States Court had discharged the land from its control and, in another attempt to get a trial, filed another petition for mandamus in this court. This court quoted from the order discharging the land from the bankruptcy proceeding and permitting Wasson to foreclose his lien in the state court, or otherwise. We said:

'Since it is now made to appear that the Federal Court has relinquished these assets for the reason above stated in its order, there appears to be no legal obstacle barring Wasson from an early trial and determination of the issues arising in said cause in accordance with law and 'agreeable to the principles and usages of law. '' Wasson v. Collings, Judge, Tex.Civ.App., 149 S.W.2d 1041, 1042.

On May 17, 1941, J. S. Garlington and wife, through their attorney, filed an amended answer in cause 3807 setting up the same plea in abatement and alleging defects in the deed of trust sale, a general denial and a plea of not guilty. On May 24, 1941, cause 3807 was tried with J. S. Garlington and wife and their counsel present and participating. The judgment J. S. and Donald Garlington now seek to set aside was rendered at the conclusion of that trial.

For other proceedings involving the land in controversy see Garlington v. Wasson, 5 Cir., 139 F.2d 183, certiorari denied, 322 U.S. 734, 64 S.Ct. 1046, 88 L.Ed. 1568, rehearing denied, 322 U.S. 770, 64 S.Ct. 1260, 88 L.Ed. 1596. There were...