Hunt v. Seeley, 9648.
| Decision Date | 13 December 1940 |
| Docket Number | No. 9648.,9648. |
| Citation | 115 F.2d 205 |
| Parties | HUNT et al. v. SEELEY et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Will A. Morriss and Will A. Morriss, Jr., both of San Antonio, Tex., R. G. Hughes, of San Angelo, Tex., and L. W. Elliott, of Sonora, Tex., for appellants.
T. R. Boone and Harvey Harris, both of Wichita Falls, Tex., for appellees.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
This court modified and affirmed (Seeley v. Hunt, 5 Cir., 109 F.2d 595) a decree of the district court which on an accounting in equity gave judgment in favor of the appellees against the appellants, who are respectively the independent executor of the will of Emma Cornell, and the administrator with the will annexed of the estate of James Cornell, execution to be issued against the independent executor, but the judgment as respects the administrator to be certified to the court which appointed him for payment in due course of administration. Execution was issued against the independent executor, and is now levied on numerous interests in lands in Pecos County, Texas, as the property of Mrs. Cornell. The independent executor sought a stay of execution in the district court which issued it on grounds later discussed, but a stay was refused and an appeal taken. A stay pending appeal was denied by a judge of the Court of Appeals, and the appeal was withdrawn. Then a bill was filed in a State court of equity by both the independent executor and the administrator praying an injunction against the enforcement of the execution on substantially the same grounds urged for a stay, and that the court enter orders that the estate of Mrs. Cornell be administered in accordance with the probate laws of Texas. An ex parte temporary injunction was entered against the sale. The plaintiffs then by a supplementary proceeding in the district court presented the situation, denied that the State court had authority to interfere with their execution sale, and prayed an injunction against further interference and obstruction of it. The independent executor and administrator joined in an answer which stated that the estate of Mrs. Cornell owed the judgment in question of about $100,000, and a claim of the United States of about $13,000 for estate taxes, and costs of administration, but had named properties of a total value of only $21,500, and the estate being insolvent was not subject to sale on execution; that the lien on certain property set up in the same decree had not been foreclosed, nor the property affected by it sold, and that a levy on other property was premature; that since the increase of the judgment by the Circuit Court of Appeals there had been no judgment entered in the district court, from which an execution could issue; that the community property of the Cornells was for administration by the administrator of James Cornell in the probate court; and that the allegations in their exhibited petition to the State court were true, and incorporated as a part of the answer. Among the allegations thus imported are some to the effect that a large part of the property levied on, fully described, is community property in the hands of the administrator to be administered; and he has procured from his probate court an order to sell it, but that the marshal's levy and sale would cloud the title and prevent a successful sale by him, and that a judgment should be rendered adjudicating the community property to be in the administrator and the separate property to be administered by the independent executor. The answer then prayed that plaintiffs' injunction be denied; but if not, that the district court would quash its own execution for the reasons given, or postpone its levy till the property under the special lien was exhausted; and that an order be made removing the cloud cast on the titles of the estates and each of them, and for general relief. On a preliminary hearing the district judge did not try out...
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