Gowan v. Reimers

• Decision Date: 08 April 1949
• Docket Number: No. 15015.,15015.
• Citation: 220 S.W.2d 331
• Parties: GOWAN et ux. v. REIMERS.
• Court: Texas Court of Appeals

220 S.W.2d 331

GOWAN et ux. v. REIMERS.

No. 15015.

Court of Civil Appeals of Texas. Fort Worth.

April 8, 1949.

Rehearing Denied May 13, 1949.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Trespass to try title by Mrs. Ray Saunders Reimers, individually and as independent executrix of the estate of C. D. Reimers, deceased, against G. G. Gowan and wife, wherein defendants filed a cross action. From a judgment for the plaintiff, defendants appeal.

Affirmed.

J. Carroll McConnell, of Fort Worth, for appellants.

J. Rob Griffin; Martin Moore & Brewster and Leo Brewster, all of Fort Worth, for appellee.

SPEER, Justice.

Appellants, G. G. Gowan and wife, have appealed this case upon an affidavit of inability to pay costs or to give security therefor, from an adverse judgment entered on a jury verdict in a district court of Tarrant County, Texas.

The controversies between the parties are highly complicated as evidenced by the large transcript which contains many of the lengthy pleadings of the parties, some of which were amended as many as four times. We also have before us a narrative statement of facts containing 350 pages and the respective briefs are lengthy, each hotly contesting every inch of the ground attempted to be covered. Nothing is conceded by either party. We find that in some instances we must extend the "liberality" enjoined by Rule 422, Texas Rules of Civil Procedure, almost to the breaking point to observe some matters brought forward.

The material phases of the case are exemplified by the following general summary of the pleadings; we can scarcely expect all parties to agree that our statement is full enough from their respective points of view.

In February, 1947 appellee Mrs. Ray Saunders Reimers, individually and as independent executrix of the estate of her deceased husband, C. D. Reimers, instituted this suit against appellants, G. G. Gowan and wife, in the 17th District Court of Tarrant County, Texas under Cause No. 52521-A, and by a first amended petition filed in April, 1947 sought recovery by trespass to try title to two described tracts of land containing 190 and 40.6 acres in Tarrant County, Texas. Allegations were made concerning extensive improvements that had been made on the larger tract for purposes of operating a cheese factory and that appellants were in possession of said premises and refused to surrender the same and that they were claiming that the improvements thereon were placed there by them; that the 40.6 acre tract was purchased by appellants with funds belonging to the said C. D. Reimers, deceased, and deed was taken in the name of appellants with a resulting or express trust that said land should belong to said C. D. Reimers, that in view of the controversy a receiver was necessary. Further allegations were made that appellee had been forced to pay two certain notes aggregating approximately $11,000 which were the obligations of appellants and that said C. D. Reimers, deceased, had endorsed them as an accommodation to appellants. She prayed for a receiver to be appointed, title to the two tracts of land and judgment for the amounts paid on the notes.

In November, 1947 G. G. Gowan filed a suit against appellee in the capacity above stated in the 67th District Court of Tarrant County, Texas under Cause No. 53809-A, alleging that in 1939 he and C. D. Reimers, deceased, verbally entered into a copartnership agreement for the manufacture of cheese and dairy products and that C. D. Reimers, deceased, had furnished certain funds for use in said business as against appellant's labor and skill as per their said contract; that during the period the cheese plant was so operated they became closely associated and were mutually warm friends, that in consequence thereof appellant G. G. Gowan by his exemplary conduct and business integrity established a line of credit with certain named banks to the extent of approximately $75,000; that said partnership also engaged in other enterprises, such as mining interests in Texas and Colorado. That during May of 1946 appellee wantonly, maliciously and falsely advised the Trinity State Bank of Fort Worth that appellant was a crook and that he had by fraud and deception procured from her husband, the said C. D. Reimers, deceased, large sums of money. Similar charges were made concerning statement of appellee's agent made with her knowledge, consent and acquiescence. That said wrongful acts occasioned appellant the loss of his good name and credit, to his damage in various and sundry amounts, the aggregate of which we are unable to state with accuracy. The pleader's sum total is given at $1,098,500 actual damages, and prayer was for that amount plus $1,000,000 exemplary damages.

After the 67th District Court had transferred Cause No. 53809-A to the 17th District Court, appellee filed a motion on May 26, 1948 in the 17th District Court to have said causes consolidated. Appellants resisted the consolidation by a lengthy document filed on May 28, 1948, in which they pointed out many reasons why that case should not be consolidated with Cause No. 52521-A but should be tried separately.

On June 21, 1948 the court heard all parties on the motion and the contest and entered his order of consolidation. There is nothing in the order or elsewhere in the record indicating that appellants excepted to the court's order of consolidation.

On April 22, 1948 appellants filed their third amended answer in the 17th District Court in Cause No. 52521-A but after the order of consolidation appellants filed their fourth amended answer and cross action on June 25, 1948, which last amendment had the legal effect of superseding all previous answers and was the answer upon which trial was had. The answer is a highly complicated document containing what the pleader denominated six counts, each of which is many times subdivided into numbered sections, with prayer attached thereto referable to that particular count. As best we can interpret the pleading there are allegations of large items claimed to have been advanced by appellants in connection with the cheese manufacturing business which it is claimed were due by C. D. Reimers, deceased, under the original verbal contract of partnership; there are other large items asserted as advancements by appellants for the benefit of C. D. Reimers, deceased, in connection with his private oil and mining business, for all of which appellants claimed reimbursement against the appellee executrix. There is what we construe to be a cross action seeking to recover title to the 190 acre tract held in the name of C. D. Reimers, deceased, under the claim of a trust in that it was paid for with appellants' money; there are special denials of any trust relation in the matter of the 40.6 acre tract standing in appellants' name. The answer further reflected a cross action to recover against appellee damages to appellant's good name, reputation and business standing in large sums. It is charged "that growing out of said partnership organized for the purpose of production of cheese said C. D. Reimers (deceased) and G. G. Gowan became well acquainted with each other and built up and established a profitable acquaintanceship and credit at the Trinity State Bank of Fort Worth." Further allegations are made of appellant's activities in the business in Colorado and a valuable line of credit there; that appellee acting through her agent, whose acts were fully authorized and acquiesced in by her, falsely, wantonly and maliciously made statements about appellant which had the effect of ruining appellant's good name and high business standing for honesty and integrity, resulting to his great damage totaling $512,500 actual damages. Prayer in this connection was for recovery of said actual damages and for exemplary damages in an equal amount. This answer and cross action is much more elaborate than our summary would indicate.

Appellee filed fifty or more special exceptions to each of the third and fourth amended answers and cross actions but nowhere in the record do we find that any such exceptions were called to the attention of the court or acted upon by him. Trial was to a jury on special issues. All issues were answered in favor of appellee and against appellants. Judgment was entered upon the verdict and matters recited in the judgment to have been established without dispute and as matters of law resulting therefrom. Hence this appeal.

At the beginning of this discussion we are confronted with objections by appellee to a consideration of appellants' points of error one to eleven inclusive, because it is claimed there are no assignments of error in the amended motion for new trial upon which to predicate them. An intelligible explanation of the situation upon which the objections are predicated would not prove helpful as a precedent, to say nothing of the space required. We will consider the points.

Appellants' first point of error complains of the action of the trial court in consolidating the two cases Nos. 52521-A and 53809-A. As we have already pointed out, no exception was reserved to the action of the court complained of. The pleadings in both cases clearly reveal that the parties were the same. True, appellant Mrs. Gowan was not named as a plaintiff in Cause No. 53809-A but that being a suit by the husband to recover community property she was in the eyes of the law as truly a party as if so named. Martin v. Burcham, Tex.Civ.App., 203 S.W.2d 807. The record is replete with indisputable facts that each of the suits had its genesis in the purported relationship between appellants and C. D. Reimers, deceased, whose estate is represented by the appellee. Hence it follows that both actions involved questions of law and facts common to both suits then pending in the 17th District Court. Rule 174, T. R. C. P., provides, among other things: "When actions involving a common question...