Heath v. Garrett

• Decision Date: 01 January 1878
• Citation: 50 Tex. 264
• Parties: W. H. HEATH, ADM'R, v. JAMES GARRETT.
• Court: Texas Supreme Court

50 Tex. 264

W. H. HEATH, ADM'R,

v.JAMES GARRETT.

Supreme Court of Texas.

1878.

APPEAL from Rains. Tried below before the Hon. Green J. Clark.

The facts are given in the opinion.J. J. Hill, for appellant.--The only assignment of error is, “that the court erred in sustaining the demurrer of the plaintiff to the answer of the defendant this day filed.”

First proposition: This being a suit for an order to sell land belonging to the estate of M. H. Heath, deceased, all the heirs of said Heath were necessary parties to the same.

The following are the heirs of said M. H. Heath, deceased:

N. P. Heath, surviving wife; Gus. Heath, L. D. C. Heath, Mark Heath, M. H. Heath, Jr., Daniel Heath, Fannie Heath, Dudley Heath, and J. Heath, children of said M. H. Heath, deceased, all of whom reside in Rains county, Texas, the last six of whom are minors, and none of whom are parties to this suit.

Second proposition: The defendant was entitled, in law and equity, in this case, to have the value of the cotton paid and delivered to said Garrett, as agent of said Wallace & Co., and at their special instance, entered as a credit by the court on said judgment, to wit, the sum of $1,207.50.

The defendant below paid and delivered to the said Garrett, as agent of said Wallace & Co., 24,150 pounds of seed cotton, to be credited upon said judgment. He did this at the instance of Wallace & Co. Garrett was the duly authorized agent of Wallace & Co. to represent them in the premises. Said Wallace & Co. authorized and instructed said agent to receive said cotton. Said cotton was worth the reasonable aggregate sum of $1,207.50. Said cotton was delivered in good faith subsequent to the rendition of said first-mentioned judgment, to wit, the judgment for the payment of which said land is sought to be sold.

Third proposition: The court having taken jurisdiction of this case for one purpose, should have taken it for all purposes, and have done complete justice between the parties.

Hunter & Putman, for appellees.

I. When the Supreme Court reformed the judgment of the District Court, and remanded it to the County Court with directions to proceed to its execution in conformity there with, that judgment finally disposed of that case, and the administrator, when required to proceed to its execution, could not file any further pleadings or defenses. It was then too late to plead in that cause.

II. It may be that the administrator, by the proper application to the proper court, could have obtained an injunction, and have stayed the execution of that judgment until the after-acquired rights set up by him could have been adjudicated and determined, and if allowed, an order granted in his favor setting off the amount pro tanto against the reformed judgment of the Supreme Court.

GOULD, ASSOCIATE JUSTICE.

Garrett, suing for the use of Wallace & Co., recovered a judgment establishing a claim against the estate of M. H. Heath, deceased, and enforcing a vendor's lien on certain land of the estate. The administrator, by writ of error, brought that judgment to this court for revision, where it was reformed so as to remand it to the County Court of Rains county for further proceedings for its enforcement, but was otherwise affirmed. (Heath v. Garrett, 46 Tex., 23.) On May 2, 1877, Garrett applied to the County Court of Rains county, sitting as a court of probate, for an order to sell the lands which had been decreed subject to the vendor's lien, for the satisfaction of said judgment. The administrator, having been cited, answered the application, alleging, in substance, part payment of the judgment after its rendition in the District Court by the delivery of cotton to Garrett, failure of title to the land on which the lien was enforced, and that the heirs of M. H. Heath, deceased, were necessary parties. The County Court impanelled a jury of six, and submitted to them the disputed issue of part payment in cotton, and the jury having found that issue in favor of the administrator, the court ordered the sale of the land for the payment of the balance only of the judgment. From this judgment Garrett appealed to the District Court. In that court the defendant again pleaded the same defenses, winding up with a prayer for injunction against the enforcement of the judgment, except as to the balance remaining after crediting the cotton, and with a prayer for general relief. The plaintiff excepted to this answer generally and specially, the grounds of special exception being that the matters therein set up had been or should have been adjudicated by another court, and that the Probate (County) Court had no jurisdiction of the subject-matter set up in the answer. The court sustained the exceptions to defendant's amended answer, and the record recites: “Said cause then coming on for trial, the questions of law and facts being submitted to the court,” proceeding to order the administrator to sell the land to satisfy the plaintiff's judgment. The administrator appeals to this court, assigning as error the...