Goldring v. Goldring, 17607

• Decision Date: 02 May 1975
• Docket Number: No. 17607,17607
• Citation: 523 S.W.2d 749
• Parties: Harry William GOLDRING et al., Appellants, v. Phidias Arden GOLDRING et al., Appellees.
• Court: Texas Court of Appeals

Page 749

523 S.W.2d 749

Harry William GOLDRING et al., Appellants, v. Phidias Arden GOLDRING et al., Appellees.

No. 17607.

Court of Civil Appeals of Texas Fort Worth.

May 2, 1975.

Rehearing Denied June 6, 1975.

Loe & Warren, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellants.

Brown, Herman, Scott, Dean & Miles, and Beale Dean and William M. Brown, Fort Worth, for appellee, Phidias Arden Goldring.

DeVore, Bagby, McGahey & Ross, and William L. Bagley, Arlington, for appellee, intervenor, Arlington Bank & Trust.

OPINION

BREWSTER, Justice.

The plaintiffs, Harry William Goldring, Robert Alford Goldring, Donald Lee Goldring and Carolyn June Goldring Agostini, sued their father, Phidias Arden Goldring, in trespass to try title, seeking to recover title to about 100 acres of land. They also sought to cancel and rescind, on the grounds of fraud, certain conveyances and an agreement affecting the title to such property that the parties had entered into about 13 years before this suit was filed. Plaintiffs also asked for an accounting by the father to the plaintiffs for funds plaintiffs claimed the father owed to them as testamentary trustee under the terms of Emma Goldring's will. Emma Goldring was the mother of Phidias Goldring and the grandmother of the plaintiffs. Involved in the proceedings was the matter of construing the will of Emma Goldring. Plaintiffs also sought to recover title to the land free of the lien in favor of intervenor, Arlington Bank and Trust, that had been granted to such intervenor by defendant.

Trial was had before a jury. On a hearing of a preliminary motion filed in the case by plaintiffs, the court entered an order several months before the trial construing the Emma Goldring will adversely to the contentions of plaintiffs. At the subsequent trial, at the close of the plaintiffs' evidence, on motion by the father, the cause of action in trespass to try title and the cause of action for cancellation and rescission of the partition deeds and related agreements were severed from plaintiffs' cause of action relating to an accounting. Judgment was then rendered as a matter of law, denying the plaintiffs the right to cancel and rescind the two partition deeds and accompanying agreement that the parties entered into, and judgment was also rendered that plaintiffs take nothing from defendants on their trespass to try title action. This is an appeal from that decree. The accounting feature of the case, after the severance, was docketed under a different number and after the causes were severed and judgment rendered as above indicated, the trial of the accounting feature of the case continued to the jury as a separate case. The accounting feature of the case is not involved on this appeal.

The appellants did not file a motion for new trial in this case as a prerequisite to the appeal as is required by Rule 324, Texas Rules of Civil Procedure.

Because of that there is at the outset presented to us for determination this question: Which of appellants' 21 points of error must we overrule because appellants did not assign as error in a motion for new trial the matters complained of in the points of error?

The substance of the part of Rule 324 that is material here is that a motion for new trial shall be filed as a prerequisite to appeal except that an assignment in a motion for new trial is not a necessary prerequisite to the right to complain on appeal of a court's action in withdrawing a case from a jury and rendering judgment. But a motion for a new trial is a necessary prerequisite to a consideration of the complaints mentioned in Rule 325, T.R.C.P.

Rule 325 provides that, 'In cases of motions for continuance, or for change of venue, or other preliminary motions made and filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; . . ..'

In appellants' 4th, 5th, 6th, 7th and 8th points of error, complaint is made of the trial court's rulings on special exceptions and on motions to strike allegations from pleadings that were involved. We overrule each of those points because the matters therein complained of were not assigned as error in a motion for new trial. See on this Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup., 1974), and First National Life Insurance Co. v. Herring, 318 S.W.2d 119 (Waco, Tex.Civ.App., 1958, no writ hist.).

In appellants' 11th and 12th points of error complaint is made of the trial court's ruling severing the causes in the manner hereinabove indicated. We overrule those two points of error because the court's ruling therein complained of was not assigned as error in a motion for new trial. See Finder v. E. L. Cheeney Company, 368 S.W.2d 62 (Beaumont, Tex.Civ.App., 1963, no writ hist.) .

In appellants' 13th point of error complaint is made of the trial court's action in overruling, plaintiffs' motion for withdrawal, reconsideration or amendment of the judgment that is being appealed from here.

In their 14th point of error appellants contend that the trial court erred, after he had granted Phidias Goldring's motion for an instructed verdict, in overruling appellants' motion them made to be permitted to reopen their case and to file their second trial amendment.

We overrule appellants' 13th and 14th points of error because the rulings therein complained of were not assigned as error in a motion for new trial. See Rule 324, T.R.C.P., and White v. Aetna Fire Underwriters Insurance Co., 503 S.W.2d 653 (Eastland, Tex.Civ.App., 1973, no writ hist.).

In appellants' 15th and 16th points of error they complain of the trial court's action in overruling their objections to special issues submitted in the charge and in refusing to give their requested instructions in the charge.

We overrule those two points because the matters therein complained of were not assigned as error in a motion for new trial. Moreno v. Jenkins, 436 S.W.2d 620 (Austin, Tex.Civ.App., 1968, ref., n.r.e.), and Prewitt v. Liberty Mutual Insurance Company, 461 S.W.2d 522 (Waco, Tex.Civ.App., 1970, ref., n.r.e.). We overrule these two points for the additional reason that the issues submitted in the charge to which the objections were made related only to the accounting suit which was severed out of the case that is now on appeal before this Court. Because the accounting suit is not involved on this appeal, the question of whether the court erred in overruling the objections to the charge given in the accounting feature of the case is immaterial to this appeal.

Appellants in their 17th, 18th and 20th points of error complain of rulings of the trial court in either admitting or excluding evidence.

We overrule all three of those points of error because none of the rulings therein complained of were assigned as error in a motion for new trial. Complaints of the action of a court in ruling on the admission or exclusion of evidence are waived when not based on a specific assignment of error in a motion for new trial. Prewitt v. Liberty Mutual Insurance Company, supra.

In their 19th and 21st points of error appellants complain that the trial court erred in unfairly limiting the cross-examination of the witnesses, James Knapp and T. T. Chamberlain.

We overrule both of those points because neither of them were based on an assignment of error in a motion for new trial. Rule 324 . We also overrule both of those points for the added reason that the two witnesses referred to in these two points did not even testify until after the judgment here being appealed from had already been rendered. At that time the accounting case had been severed, as above indicated, and the trial before the jury was continuing therein. It was later, during the trial of only the accounting case that the witnesses Knapp and Chamberlain testified. For that reason any error that the trial court might or might not have committed during the time those witnesses were testifying would have no bearing on the outcome of this appeal.

This suit was filed on December 24, 1969. The plaintiffs sought therein to cancel and rescind the following:

1. A partition deed dated August 1, 1956, by which the defendant, Phidias Goldring, conveyed to his four children (the plaintiffs) that part of the Emma Goldring farm lying north of the Dallas-Fort Worth Toll Road, and by which the plaintiffs conveyed to the defendant all of that farm lying south of said Toll Road;

2. A contract or letter agreement between plaintiffs and defendants dated August 1, 1956, pertaining to this same farm; and

3. Certain recitals contained in a general warranty deed dated January 24, 1958, by which the defendant, Phidias Goldring, conveyed jointly to the four plaintiffs and their mother, Mrs. Gladys Paine, a 9.6 acre tract (being a part of said farm) located on the south side of the Toll Road and fronting on Meadowbrook Drive.

Plaintiffs sought to set aside those instruments on the ground that they were induced to execute the first two instruments just referred to above and to accept the third one (a conveyance) by the alleged fraud of their father consisting of misrepresentations, false promises, and concealments of material facts.

The defendant-intervenor, Arlington Bank and Trust, claimed that it was an innocent mortgagee for value and without notice of any claims to said land by plaintiffs, and that it had loaned money in good faith to Phidias Goldring, the record title holder of said land, who had given a lien on the land as security for the loan.

The undisputed evidence showed that Emma Goldring, the plaintiffs' paternal grandmother, had owned this farm at the time she died. Emma Goldring was also the mother of the defendant, Phidias Goldring . Emma Goldring died on May 26, 1945, leaving a will dated July 15, 1940, which was probated in 1948 by defendant, Phidias Goldring. Phidias Goldring qualified as independent executor under...