Hare v. Reily

• Decision Date: 10 January 1925
• Docket Number: (No. 9178.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: HARE v. REILY.
• Court: Texas Court of Appeals

Page 473

269 S.W. 473

HARE v. REILY.

(No. 9178.)^*

Court of Civil Appeals of Texas. Dallas.

January 10, 1925.

Rehearing Denied February 14, 1925.

Appeal from District Court, Grayson County; F. E. Wilcox, Judge.

Suit by F. H. Reily against Silas Hare, administrator. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. H. Wood and O. D. McReynolds, both of Sherman, for appellant.

J. R. Wood and Head, Dillard, Smith, Maxey & Head, all of Sherman, for appellee.

LOONEY, J.

F. H. Reily, an attorney of Pottawatomie county, Okl., brought this suit against Silas Hare as administrator of the estate of Samuel W. Bailey, to recover an amount alleged to be due him as attorney's fee for services rendered B. F. Hamilton, executor of the same estate in Oklahoma. Judgment was rendered for plaintiff for the sum of $6,000 and costs, from which appellant has properly perfected appeal and assigned errors. The pleadings are voluminous but the case may be narrowed to the following statement:

On September 24, 1912, Samuel W. Bailey, of Pottawatomie county, Okl., died, leaving a will, by the terms of which his entire estate was bequeathed to one Sherman Spencer, and B. F. Hamilton, of the same county and state, was named executor. The estate consisted of a small amount of property in Oklahoma, and about $55,000 in cash on deposit in a national bank of Denison, Grayson county, Tex. The will was admitted to probate after considerable litigation, and Hamilton was recognized and qualified as executor, and took charge of the property belonging to the estate situated in Oklahoma. The appellant, Silas Hare, was appointed permanent administrator of the estate in Texas, qualified, and took charge of the property belonging to the estate situated in Texas.

Plaintiff claimed that, under contract with Hamilton, executor, he rendered legal services in having the will probated and Hamilton recognized as executor. In his original petition he declared on a claim for $4,025, which he alleged had been presented to and approved by Hamilton, executor, and allowed as a claim against the Bailey estate by the county judge of Pottawatomie county, Okl., and also that same had been presented to appellant as administrator, but was disallowed by him. In his first amended petition appellee abandoned the verified claim described above, and sought to recover $7,000 on a quantum meruit, the alleged value of his services.

In answer to appellee's petition, appellant urged, as defenses, general denial and specially that if appellee rendered any services as alleged by him, they were not rendered for or on behalf of the Bailey estate, but were rendered at the instance and for the benefit of Sherman Spencer, the sole legatee, and on his individual responsibility; that appellee's claim was barred by the statute of limitation of two and four years; and, further, that appellee had made an agreement with Spencer, the sole legatee, to accept $10,000 in full for whatever services he had rendered or might in the future render, in regard to the affairs of said estate, of which amount $1,000 was paid, and, as a means of collecting $9,000, the remainder, appellee accepted from Spencer an assignment of an interest in the estate, and waived all claim for compensation against either Hamilton, the executor, or appellant, the administrator, and that by virtue of, and as authorized by the assignment executed by Spencer, appellant had paid appellee in full the amount due him; that appellee was estopped to urge the claim against appellant as administrator because, prior to the time it was presented to him for approval, his final report as administrator had been made to and approved by the probate court of Grayson county; that when the final account was presented appellee was present in court representing his client, Spencer, and urged the court to approve the same and enter an order for distribution.

This was the status of the case on January 20, 1923. On that day appellee filed a suit in the district court of Pottawatomie county, Okl., against Hamilton, executor, to recover the sum of $6,000, which he claimed was the balance due him for services rendered Hamilton, executor, in regard to the affairs of said estate. On the day the suit was filed Hamilton signed waiver of service, waived time for making up issues, and agreed that the cause could be heard and determined by the court at any time. Hamilton made no defense to this suit. On the same day the suit was filed it was heard by the court, and judgment rendered in favor of appellee against Hamilton for $6,000 and costs. Appellant was not cited to appear and answer in the cause; had no notice of the pendency of the suit, nor of any of the proceedings until the judgment was subsequently presented to him for allowance as a claim against the Bailey estate.

After obtaining judgment against Hamilton, appellee filed his second amended original petition in which he set up the rendition of the judgment, and based his right to recover against appellant thereon, and, in the alternative, sought to recover on a quantum meruit as alleged in his first amended original petition hereinbefore mentioned.

Appellant, in answer to appellee's second amended petition, filed his third amended answer, and urged therein the special defenses hereinbefore stated, and, in addition, pleaded, both by special exceptions and special defenses, that the judgment sued on was void, for the reason that under the statutes of Oklahoma, which were specially pleaded by appellant, the district court was without power or jurisdiction to render the judgment; that the judgment was obtained by fraud and collusion between appellee and Hamilton, in that Hamilton, knowing appellee had no valid claim against the Bailey estate, knowing that he had been paid in full for all services he had rendered, knowing of the existence of the valid defenses to his claim, as pleaded by appellant, and knowing that it was the intention of appellee to use the judgment as a basis of recovery in this suit, voluntarily entered his appearance in said cause, permitted judgment to be rendered against him without interposing any opposition or defense thereto, and without giving appellant notice of the suit, but, fraudulently colluding with appellee, permitted the judgment to be rendered for the purpose of cutting off and preventing appellant from interposing said defenses.

Appellee replied by supplemental petition, in which he urged general and special exceptions to the effect that no facts were alleged by appellant showing want of jurisdiction of the court to pronounce the judgment; that the allegations of fraud in regard to the procurement of the judgment did not show such facts as would warrant the court in not giving the judgment full faith and credit; that appellant's allegations as to the laws of the state of Oklahoma, requiring claims against an estate to be presented to the administrator before suit, constituted no defense to the judgment, but was an attempt to go behind the judgment and attack it on its merits; that the judgment was conclusive as against all matters plead in defense; and that the answer of appellant was an attempt to deny full faith and credit to the judgment rendered by the Oklahoma court, contrary to section 1, article 4, of the Constitution of the United States; and that the matters set up in appellant's answer alleging fraud in the procurement of the judgment were concluded by the judgment; that the same was an attempt to go behind the judgment and attack it on its merits, thus denying to it full faith and credit; that the fraud alleged was intrinsic; and that the judgment could not be successfully attacked, if at all, for any reason other than fraud of an extrinsic nature.

The court overruled appellant's special exceptions to the second amended petition of appellee, and sustained the special exceptions urged by appellee to appellant's third amended answer. On the trial, the only evidence offered by appellee to prove his claim was a copy of the petition filed in the suit of appellee against Hamilton, executor, in the district court of Pottawatomie county, Okl., a copy of the waiver of service by Hamilton in that cause, and a copy of the judgment rendered in favor of appellee against Hamilton. The court below, on this evidence, rendered judgment agaist appellant as administrator for $6,000, with 6 per cent. interest per annum from January 23, 1923, and costs of suit, and directed that the same be certified to the probate court of Grayson county for payment in due course of administration.

The net result of the rulings of the court on exceptions and the judgment rendered by the court on the evidence, was to the effect that the judgment rendered by the district court of Pottawatomie county; Okl., in favor of appellee against Hamilton, was conclusive on appellant as administrator in Texas, and cut off all defenses; that the alleged collusion, conspiracy, and fraud, practiced by appellee and Hamilton in procuring the judgment, could not be pleaded as a defense to appellee's suit on the judgment, and that appellant could not be permitted to show that appellee's claim was not valid or had been paid, nor could he be permitted to urge any of the other defenses pleaded by him.

Appellant, by appropriate assignments and propositions, challenges the correctness of the rulings and judgment of the court below, and, as grounds for reversal, contends, in substance (1) that the judgment of the district court of Pottawatomie county, Okl., on which the judgment below was rendered against appellant, is void because the court which rendered it was without jurisdiction, and that the invalidity of the judgment could be pleaded as a defense when sued on in Texas; (2) that the alleged fraud practiced in procuring the judgment could be pleaded as a defense to the suit filed by appellee against appellant, and that it is immaterial whether the attack be called direct or...