Jenckes v. Mercantile Nat. Bank at Dallas

• Decision Date: 23 September 1966
• Docket Number: No. 16763,16763
• Citation: 407 S.W.2d 260
• Parties: Marcien JENCKES et al., Appellants, v. MERCANTILE NATIONAL BANK AT DALLAS et al., Appellees. . Dallas
• Court: Texas Court of Appeals

Page 260

407 S.W.2d 260

Marcien JENCKES et al., Appellants, v. MERCANTILE NATIONAL BANK AT DALLAS et al., Appellees.

No. 16763.

Court of Civil Appeals of Texas Dallas.

Sept. 23, 1966.

Rehearing Denied Oct. 21, 1966.

Jackson, Walker, Winstead, Cantwell & Miller and Jack Pew, Jr., Dallas, for appellants.

W. O. Shultz, asst. Atty. Gen., Austin, George Terry, James Kilgore, Mark Martin, Robert W. Smith and Robert L. Blumenthal, Dallas, for appellees.

BATEMAN, Justice.

The appellants are the trustees of the Blake Brothers Liquidation Trust, assignees of all members of Blake Brothers and Company, a partnership alleged to have been the only 'registered owner' of Texas Pacific Land Trust Certificate No. 390. This certificate seems to have disappeared many years ago. In a suit brought by the State of Texas against them and others, the appellants filed a cross-action against the appellees hereinafter named and others, to recover 'all the proceeds, accumulations and avails of said Certificate No. 390,' and for declaratory judgment declaring them to be the true owners of such property. This cross-action was severed from the main suit, and at the conclusion of a nonjury trial thereof judgment was rendered that appellants take nothing, but without prejudice to their right to sue again for the property if additional evidence of their ownership shall become available. The facts were stipulated and only questions of law are presented on this appeal.

Certificate No. 390, covering 100 shares of proprietary interest in the Texas Pacific Land Trust, was issued June 26, 1888 to Blake Brothers and Company, which has since that date been its only registered owner on the books of the Trust, no transfer thereof having been made on such books at any time to a known or identifiable person or persons, and no such person having established his ownership thereof to the satisfaction of the trustees of the Texas Pacific Land Trust or the custodian, ¹ or by judgment of a court of competent jurisdiction.

This is the third action appellants or their predecessors have instituted to recover this property. The first was in New York in 1952, resulting in a judgment 'for the defendants, dismissing the complaint for failure of proof,' but without prejudice to the filing of another suit if new evidence of their ownership is discovered. Davis v. Fraser, Sup., 121 N.Y.S.2d 643. That judgment was affirmed unanimously, but without written opinion, by the Appellate Division, 283 App.Div. 657, 127 N.Y.S.2d 838, and was also affirmed by the New York Court of Appeals in 1954 in Davis v. Fraser, 307 N.Y. 433, 121 N.E.2d 406.

The second attempt was a suit in the 101st District Court of Dallas County. The trial of that case resulted in a judgment that the appellants had failed to establish their ownership of the certificate and that they 'take nothing,' but 'without prejudice to their right to bring another suit for recovery of same if additional evidence of their ownership and loss of such Certificate shall become available.' That judgment was affirmed in 1958 by the Texarkana Court of Civil Appeals in Davis v. Fraser, Tex.Civ.App., 319 S.W.2d 799, wr. ref. n.r.e. That opinion quotes the entire opinion of the trial court in New York, in Davis v. Fraser, Sup., 121 N.Y.S.2d 643, 644. We refer to all of the opinions above mentioned for a more complete history of this interesting litigation . Those opinions also set forth in detail the evidence upon which it was held that ownership of the certificate had not been established.

Appellees say that the cause of action asserted in the present suit is identical with that sued on in the two previous cases, and that appellants are barred by the doctrine of Res judicata and estoppel by judgment from relitigating the same issues. Appellants reply that after the decision of Davis v. Fraser, Tex.Civ.App., 319 S.W.2d 799, wr. ref. n.r.e., the Texas Legislature in 1963 enacted a statute now known as Vernon's Ann.Civ.St., Art. 1358a, which created for them a new cause of action upon which the present suit was based and that their present suit on that statute could not be barred by judgments rendered long before that statute was enacted.

This statute specifically applies 'to all distributions of cash or property, tangible or intangible, made or payable, by any corporation, joint stock company or business trust having transferable shares or certificates of beneficial interest, organized under the laws of this state or substantially all of whose capital or assets consisted of property located in this state at the time of organization, to persons registered on its books as the owners of shares or certificates * * * and including all such distributions heretofore payable which were not paid to the person registered as the owner of the shares or interest on the records of such organization at the time such distributions were payable, * * * but which are now being held in suspense by such organization or which were paid or delivered by it into an escrow account or to a trustee or custodian,' and provided that such distributions, etc. shall be payable to the person in whose name such shares or certificates are or were registered on the records of any such organization at the time such distributions are or were payable, and that such registered owner shall be presumed to be or to have been the owner of the shares or certificates so registered in his name at that time, and that 'this presumption shall be rebuttable only by proof of an actual transfer having been made by such registered owner prior to that time to some known and identifiable person or persons.' It also provides that a claim by anyone other than the registered owner shall be barred unless suit is brought thereon within four years from the time that such distribution was originally payable or, as to a cause of action theretofore accrued, within one year from the effective date of the act or four years from the time the distribution was originally payable, whichever is longer.

Appellants' six points of error raise the different aspects of the sole ultimate question: Does Art. 1358a, V.A.C.S., create for appellants a cause of action which is so different from that asserted in the two previous suits as to relieve appellants from the application of the doctrine of Res judicata or estoppel by judgment? We think this question must necessarily be answered in the negative .

Appellants say these defenses are not available to appellees; their theory being thus stated in their brief:

'It is thus apparent that the Davis v. Fraser litigation is entirely different from that now before this Court. The Davis v. Fraser cases were attempts to try the title to Certificate No. 390. In the present suit, the title to Certificate No. 390 is not in issue. In the Davis v. Fraser cases, Appellants' predecessors sought to receive distributions attributable to Certificate No. 390, upon the theory that they were the owner of Certificate No. 390. In the present case, Appellants seek such distributions, not as owners of Certificate No. 390, but as the persons entitled to such distributions under the provisions of a Texas statute. At the time of the Davis v. Fraser cases, Appellants could not pursue their remedies under such statute, because the statute was not then in existence.'

We do not agree with this theory. The burden was upon the appellants and their predecessors, in all three cases, to establish that they were the owners of the lost certificate and the accumulated profits thereof. Without proof (or a presumption) of ownership appellants could not be entitled to the distributions. Their ownership was an essential element, a Sine qua non, of their cause of action in each case. Two courts of competent jurisdiction had held that they failed to prove this indispensable element. Appellants were not entitled to ask another court to reach a contrary conclusion unless they could produce new or additional evidence of their ownership. The door was not left open for a subsequent suit based upon a change in the rules of evidence, but only for a suit supported by newly discovered Evidence. No such new evidence having been discovered, the two Davis-Fraser judgments stand as a complete bar to appellants' recovery in this case. Hanrick v. Gurley, 93 Tex. 458, 479, 56 S.W. 330.

Appellants remind us that the Legislature has the power to change the common law and that no one has vested rights therein, citing Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451; International-Great Northern R. Co. v. Reagan, 121 Tex. 233, 49 S.W.2d 414, and Louisiana Ry. & Nav. Co. v. State, Tex.Civ.App., 298 S.W. 462, affirmed, Tex.Com.App., 7 S.W.2d 71. However, this well settled rule of law has no application here. In none of the cases cited by appellants was the change in the law advanced as a means of destroying the effect of a judgment of a court, based upon the law as it was at the time of the judgment, which has been affirmed by every appellate court having jurisdiction thereof. That is the case we have here.

Much more in point is Murphy v. India Tire & Rubber Co., Tex.Civ.App., 27 S.W.2d 1110, no wr. hist., where, after a defendant's plea of privilege was sustained and the case transferred from Dallas County to Bexar County, the Legislature added subdivision 29a to Art. 1995, V.A.C.S. The plaintiff then dismissed the suit without prejudice and refiled in Dallas County, asserting that the suit was now maintainable in Dallas County by virtue of the new exception embodied in subdivision 29a. However, this court held that the order sustaining the plea in the first suit was Res judicata and settled for all time the question of venue of any suit upon...