Hughes v. Fort Worth Nat. Bank

• Decision Date: 10 July 1942
• Docket Number: No. 14408.,14408.
• Citation: 164 S.W.2d 231
• Parties: HUGHES v. FORT WORTH NAT. BANK.
• Court: Texas Court of Appeals

Page 231

164 S.W.2d 231

HUGHES v. FORT WORTH NAT. BANK.

No. 14408.

Court of Civil Appeals of Texas.

July 10, 1942.

Rehearing Denied September 11, 1942.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Suit by Hal P. Hughes against John W. Myers to recover for services rendered by the plaintiff in acting as an intermediary between defendant and his wife in negotiating a property settlement. On the defendant's death, the Fort Worth National Bank, independent executor of the estate of John W. Myers, deceased, was named as defendant. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Clark, Craik, Burns & Weddell, of Fort Worth, for appellant.

Culbertson, Morgan, Christopher & Bailey, R. F. Milam, and N. A. Dodge, all of Fort Worth, for appellee.

McDONALD, Chief Justice.

This case involves a question of unauthorized practice of law.

The suit is brought by Hal P. Hughes. In the plaintiff's original petition John W. Myers is named as defendant, but, following proper suggestion of death, plaintiff's first amended petition names as defendant the Fort Worth National Bank, as independent executor of Mr. Meyers' estate.

The independent executor answered by plea in abatement, asserting that plaintiff did not have the capacity to maintain the suit, and that the suit should be dismissed, because the cause of action is based upon acts of plaintiff which constituted the practice of law, within the meaning of Art. 430a, Vernon's Penal Code of Texas, Annotated, and that plaintiff was not a member of the bar regularly admitted and licensed to practice law. There appears in the transcript an instrument, designated as a brief of amici curiae, filed in the trial court by the officers and directors of the Fort Worth Bar Association, in which they allege that plaintiff is not a member of the State Bar of Texas and is not authorized to practice law, and that the rendition of the services described in plaintiff's pleadings was a violation of the penal statute cited, and of Art. 320a — 1, Vernon's Ann.Civ.St., and in which they pray that plaintiff's suit be abated and dismissed.

Upon the hearing of the plea in abatement, the only evidence introduced was the original petition filed by plaintiff, and the testimony of plaintiff himself. The trial court sustained the plea and dismissed the suit. Plaintiff appeals.

Since the statute covers three printed pages we shall not quote it, but refer to the text of it as it appears in the publications of our statutes.

Paragraph (a) of Section 2 provides in part that the practice of law includes the performance, in a representative capacity, of any act in connection with proceedings before a court. Under paragraph (b) of the same section, it is practicing law to advise or counsel another as to secular law. Under paragraph (c) one is practicing law who, for a consideration or reward, does any act in a representative capacity in behalf of another tending to obtain the establishment or enforcement of a right.

Plaintiff's original petition was introduced in evidence by defendant. Our Supreme Court, in Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729, said: "It is the general rule that the pleadings in a particular case, for the purpose of use as such in that case, are to be regarded as judicial admissions, rather than just ordinary admissions. Texas Law of Evidence, McCormick & Ray, p. 640. It is also the general rule that when a pleading has been abandoned, superseded, or amended, it ceases to be a judicial pleading, and therefore ceases to be a judicial admission. It follows that any admission contained in an abandoned pleading ceases to be binding on the pleader, in the sense that he is prevented from disproving facts alleged therein. Such pleading, however, still remains a statement seriously made, and it can be introduced in evidence as an admission. Texas Law of Evidence, McCormick & Ray, p. 642."

Plaintiff's original petition alleges in substance that a divorce suit was pending between said John W. Myers and his wife Effie Myers; that in order to avoid incurring the expenses, attorney's fees, etc., incident to litigation of the property rights of the parties, said John W. Myers approached plaintiff and made an agreement with plaintiff to the effect that in consideration of plaintiff acting as an intermediary between Myers and his wife in negotiating a property settlement, and in consideration of plaintiff's effecting a property settlement out of court, Myers would pay to plaintiff five per cent of the amount of property involved; that plaintiff did perfect a settlement of the property rights between Myers and his wife; that the agreed value of the property was $119,500; that the settlement was brought about by plaintiff's efforts; and that, to quote from the petition, "That in so perfecting the settlement without a court fight concerning the same, plaintiff performed and discharged his obligations under the said contract and agreement with defendant."

The petition concludes with a prayer for judgment for the sum of $5,975, representing five per cent of the property involved in the divorce suit.

In his amended petition, plaintiff alleges that he acted as a go-between, to carry propositions and counter propositions from one to the other of the parties to the divorce suit.

At the hearing of the plea in abatement, plaintiff testified that he was not admitted or licensed to practice law, but insisted throughout his testimony that he did not practice any law in the performance of the services in question. He said that he stated to his attorneys who drew the original petition that he acted as a go-between, to carry propositions from Myers to his wife, and to bring back counter propositions, and that plaintiff had read neither of the petitions filed by his attorneys. He further testified that Myers had an attorney representing him in the divorce suit, and that the attorney prepared the settlement papers. So far as plaintiff knew, Mrs. Myers, who was the mother of plaintiff's wife, did not have an attorney representing her in the matter. Plaintiff further testified as follows: Mr. Myers left home on the first day of January, 1941, went to the Metropolitan Hotel, in Fort Worth, called plaintiff to his hotel room, and told him that he and Mrs. Myers had separated and that he was not going back. That night Mr. Myers called plaintiff again to his room. After two or three days Myers asked plaintiff to move him to the Westbrook Hotel, which plaintiff did. Myers was not feeling well, and was highly nervous. A day or so later plaintiff took Myers to the office of Myers' lawyer, and the divorce suit was then filed. A day or two later Myers said to Hughes:

"Now you have been good to me, Hughes. You have waited on me heretofore many times. And I want you to act as a go-between, between my wife and I in a property settlement."

Hughes replied to the effect that he would rather not do it, whereupon Myers said:

"That is the reason I want you to go between us. I don't want to get into a court fight. I will list every piece of property I have, and then you can go take it to her and let her have what she wants to have, so it is divided equally."

Hughes took the proposal to Mrs. Myers, but at that time she did not accept that kind of an agreement. She wanted to get certain stocks and bonds...