Jones v. Campbell, 14692.

• Decision Date: 01 June 1945
• Docket Number: No. 14692.,14692.
• Parties: JONES et al. v. CAMPBELL et al.
• Court: Texas Court of Appeals

188 S.W.2d 679

JONES et al. v. CAMPBELL et al.

No. 14692.

Court of Civil Appeals of Texas. Fort Worth.

June 1, 1945.

Rehearing Denied July 13, 1945.

Appeal from District Court, Denton County; B. W. Boyd, Judge.

Suit by the Bankers Life Company against Mrs. Emma Campbell and others, wherein named defendant filed cross-action which was severed from the main action, and judgments were rendered in favor of plaintiff in the main action and defendant in the cross-action. Mrs. Emma Campbell filed affidavit in garnishment against the District Clerk of Denton County, and Coly Paulina Jones and another filed intervention contesting the garnishment. From an order overruling intervenors' motion to set aside the verdict and judgment and for a new trial, intervenors appeal.

Appeal dismissed.

George M. Hopkins, of Denton, for appellants.

W. C. Boyd, of Denton, for appellees.

BROWN, Justice.

B. D. Jones and P. J. Jones, husband and wife, are both dead. Mrs. Jones died prior to the death of Mr. Jones, who passed away in 1936.

B. D. Jones left a will in which he appointed W. V. Jones his independent executor, and such executor qualified as such.

Before twelve months had elapsed since the qualification of said executor, he undertook to partition the estate among the surviving children and children of deceased children of B. D. and P. J. Jones. There were ten moieties thus partitioned.

The lands conveyed to Mrs. Emma Campbell, a surviving daughter were burdened by a debt for which both Mrs. Campbell and the estate of B. D. Jones were liable. This indebtedness, secured by a lien on the said real estate was owned by Bankers Life Company.

Said Bankers Life Company brought suit for its debt and foreclosure of its lien on the property described in its Deed of Trust and made the said Executor, Mrs. Campbell, and all of the heirs and distributees of the Jones estate parties defendant.

In this suit a cross-action was filed by Mrs. Emma Campbell in which she sought, among other contentions, a judgment against the B. D. Jones estate for $650. The trial court made an order of severance, without prejudice to the rights of Mrs Campbell, and her cross-action was given a separate and distinct file number.

Then the "Bankers Life" suit proceeded to trial with the result that a judgment of more than $5,000 was rendered against Mrs. Campbell and the Jones estate with foreclosure of the lien securing such debt on certain named properties, and the judgment provides that the properties be sold in a certain order to satisfy such judgment: That is to say, the lands that were deeded to Mrs. Campbell be first sold and thereafter, if the debt be not satisfied, the other properties that had belonged to the Jones Estate and which had been conveyed to the several Jones heirs be sold in the order named, until an amount necessary to satisfy the judgment be received.

This judgment became final and under the order of sale and execution all of the Jones estate properties were sold and there remained a surplus of about $1,840 in the hands of the sheriff of Denton County.

The then sheriff insisted that he did not know what to do with such surplus funds and he voluntarily deposited them with the then District Clerk of Denton County. The sheriff's term of office has long since expired, and the then District Clerk's term of office also expired.

The then District Clerk put these funds in an account that she designated as a "Trust Fund," all of which she turned over to the present District Clerk.

Mrs. Campbell's cross-action proceeded to trial and on October 28, 1943, judgment was rendered in her favor against the said executor of the Jones estate in the sum of $650. This judgment was never appealed from and is final.

On April 10, 1944, Mrs. Campbell filed an affidavit in garnishment against the present District Clerk of Denton County requiring him to answer as to what funds he has in his hands belonging to the said executor, or in what sum he is indebted to the said executor.

It thus became necessary to have a District Clerk pro tem appointed to act in the matter of the issuance of the writ of garnishment, and accordingly Ella Lunday was appointed such clerk and duly qualified and issued the said writ of garnishment.

In answer to such writ the District Clerk said that he had $1913.93 in his hands that belonged to W. V. Jones, executor of the estates of B. D. Jones and P. J. Jones, deceased.

Coly Paulina Jones and Mrs. Nettie Sullivan, heirs and distributees of the Jones estate, and being the parties who had bid in all of the Jones estate's properties at the said sheriff's sale, filed an intervention contesting Mrs. Campbell's right to any part of said funds and set up several reasons why, under their contentions, Mrs. Campbell should not recover anything.

These intervenors alleged that they had purchased all of the rights and claims of all of the other Jones heirs and distributees under the will.

On October 23, 1944, the District Court of Denton County rendered judgment for Mrs. Campbell for the sum of $650 as against said garnishee and decreed that after the payment of such sum, with interest at six percent and all costs, the balance be paid to said interveners.

On October 28, 1944, the said interveners filed a motion or a new trial.

The dates in the successive steps taken are very important because of the view we take and the disposition we make of this appeal.

The next proceeding appears to be an order of the said District Court dated October 28, 1944, which is as follows:

"Mrs. Emma Campbell vs. Clarance Maxwell, Garnishee. In the District Court of Denton County, Texas.

"On this the 28th day of October, A. D. 1944, the court being in the midst of the trial of the above entitled and numbered cause and this being the last day of the present term of said court and it appearing to the court that it will be unable to conclude said trial and enter judgment in said cause during the present term, it is the opinion of the court that the present term of the court should be accordingly extended.

"It is, therefore, ordered, adjudged and decreed by the court that the present term of said court be and the same is hereby extended until Saturday, the 27th day of January A. D. 1945 to enable the court to hear motions for judgment and to render judgment in said cause and to hear motions for new trial and such other matters as may properly come before the court in connection with the above entitled and numbered cause, and it is so ordered."

This order was made on the very day in which the motion for a new trial had been filed, and on Saturday before the next term of the court.

On January 27, 1945, an order was entered by the District Court which recites: "On this the 27th day of January A. D. 1945 at the regular June term of 1944 of this court as extended, came on to be heard in this cause the motion of the interveners, Coly Paulina Jones and Nettie Sullivan, to set aside the verdict of the jury and judgment rendered herein, and for a new trial, etc."

In this order the motion is overruled, and the interveners' exception and notice of appeal noted.

The appeal bond was filed with the District Clerk on February 22, 1945.

We are of opinion that this appeal must be dismissed for the following reasons:

There has come up a hue and cry for continuous terms of our District Courts because of the advantages thus to be obtained, but when this is accomplished all the burdens that attend upon continuous terms of court must also be carried.

Chapter 71, page 100, of the Acts of the Regular Session of the 48th Legislature of Texas passed in 1943 and effective March 20, 1943, Vernon's Ann.Civ.St. art. 199, District 16, provides for continuous terms of court for the Sixteenth Judicial District of Texas, composed of Denton and Cooke Counties.

In fixing the terms of court in Denton County the Act provides:

"In the County of Denton on the eighth Monday after the first Mondays in January and September, and on the twenty-second Monday after the first Monday in January.

"Each term of court in each of such counties may continue until the date herein fixed for the beginning of the next succeeding term therein.

"(b) The Judge of said court in his discretion may hold as many sessions of court in any term of the court in any county as is deemed by him proper and expedient for the dispatch of business."

The act further provides that if any court in any county of the district be in session at the time the Act takes effect such court shall continue in session until the term thereof shall expire under the provisions of existing laws, but thereafter all courts in said district shall conform to the requirements of the Act.

It is our opinion that the order of the District Court attempting to extend the term of court at which it was entered "until Saturday, the 27th day of January, A. D., 1945, to enable the court to hear motions for judgment and to render judgment in said cause and to hear motions for new trial and such other matters as may properly come before the court, in connection with the above entitled and numbered cause," is such an order as is prohibited by the very provisions of the Act of the Legislature making the terms of court in Denton County continuous and, to say the least, the order made by the court could not and did not enlarge the time limits set forth in Rule 330, or circumvent the plain provisions of such rule.

The preamble to Rule 330, Texas Rules of Civil Procedure specifically provides: "The following rules of practice and procedure shall govern and be followed in all civil actions in district courts in counties where the only district court of said county vested with civil jurisdiction, or all of the district courts thereof having civil jurisdiction, have successive terms in said county throughout the year, without more than two days intervening between any of such terms, whether or not any one or more of such district courts include one or...