Kelly v. Wright

• Court: Texas Supreme Court
• Writing for the Court: Folley
• Citation: Kelly v. Wright, 188 S.W.2d 983, 144 Tex. 114 (Tex. 1945)
• Decision Date: 21 July 1945
• Docket Number: No. A-472.,A-472.
• Parties: KELLY et ux. v. WRIGHT et al.

188 S.W.2d 983

KELLY et ux. v. WRIGHT et al.

No. A-472.

Supreme Court of Texas.

July 21, 1945.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit in nature of a bill of review by Kork Kelly and wife against Ruth E. Wright and another to set aside a final judgment, and to enjoin defendant sheriff from executing a writ of possession ejecting plaintiffs from possession. To review a judgment of the Court of Civil Appeals, 184 S.W.2d 649, affirming a judgment of the trial court dismissing the suit, the plaintiffs bring error.

Affirmed.

Crane & Crane and M. M. Crane, Jr., all of Dallas, for petitioners.

Simon & Zimmerman and U. M. Simon, all of Fort Worth, and Charles L. Black, of Austin, for respondents.

FOLLEY, Commissioner.

On the original submission of this cause we affirmed the judgment of the court of civil appeals, which in turn affirmed that of the trial court. The cause is now before us upon motion for rehearing. In disposing of such motion, although adhering to our former judgment, we desire to rewrite the former opinion, and we order the following substituted therefor:

This suit was filed in the district court of Wichita county by the petitioners, Kork Kelly and wife, Alliene Kelly, against respondents, Ruth E. Wright and the sheriff of Wichita county, in the nature of a bill of review to set aside a final judgment in Cause No. 36927-B in the same court and to enjoin the sheriff from executing a writ of possession ejecting petitioners from the possession of Lot 4, Block 17, of the Southland addition to the City of Wichita Falls, which property had been recovered by respondent, Ruth E. Wright, in such former action. The trial court, in the instant case, sustained several exceptions to the petition of the Kellys, and upon their refusal to amend dismissed the suit. The court of civil appeals affirmed the judgment of the trial court. 184 S.W.2d 649.

A single question of law is presented, and that is, whether the trial court committed reversible error in sustaining the exceptions to petitioners' trial petition, which resulted in the dismissal of the suit.

From such petition it appears that the Kellys acquired title to the property in 1924; that the North Texas Building & Loan Association held a lien against it and foreclosed in 1932 and bought it in at trustee's sale; that thereafter the loan company permitted petitioners to continue to occupy the premises under an agreement that they might have a reasonable time in which to redeem the property; that at that time Kork Kelly, H. E. Clark and Rees Allen were associated together in business and that Clark and Allen agreed to assist the Kellys in refinancing the loan on the property by advancing the necessary money therefor; that Clark thereupon advanced the full amount of money needed, which was $1245.50, and advised the loan company to withhold the making of the deed until he might see Allen, after which he would advise the loan company how the deed should be drawn so that Allen and Clark might be secured in the repayment of the money advanced by them; and that Clark carried on his books the amount advanced as a charge against petitioners until his death in 1934, since which time his administrators had continued to carry the same and demand payment therefor.

Petitioners further alleged that thereafter on January 17, 1933, the loan company, without the knowledge or consent of petitioners, executed a deed of conveyance of the property to the respondent, Mrs. Wright; that in 1938 Mrs. Wright filed suit against petitioners in trespass to try title in Cause No. 32497-B for title and possession of the property; that such suit was dismissed for want of prosecution but was later reinstated by bill of review in Cause No. 36927-B, wherein on June 15, 1943, judgment was entered against petitioners in favor of Mrs. Wright for title and possession of the property; that Mrs. Wright received no title to the property under such deed for the reason that she accepted the same as trustee for petitioners, or at most as security for the payment of their indebtedness to H. E. Clark resulting from his advancing them the money with which to redeem the property; that this fact was well known to Mrs. Wright and her attorneys and that such evidence was deliberately withheld from the court for the fraudulent purpose of making it appear that the absolute title had vested in Mrs. Wright; that prior to the rendition of the judgment in Cause 36927-B petitioners had employed an attorney to represent them at the trial and had delivered to him a quantity of papers, records and cancelled checks pertaining to their defense, which they intended to use as evidence in the trial; that such attorney was called into the army, but before he left he delivered the file to another attorney who advised petitioners three days before the trial that the documentary evidence sustaining their defense had been lost; that although diligent search was made for the papers they could not be found prior to the trial; and that after their motion for new trial had been overruled in such cause they found the lost documents which constituted newly discovered evidence which would have produced a different result in the trial and which could not have been obtained by the utmost diligence until after petitioners' right of appeal had expired.

The opinion of the court of civil appeals states that petitioners attempted to appeal from the former judgment, but for failure to timely perfect their appeal the same was dismissed by that court in an unpublished opinion. Although the present record does not support this statement it is a matter of which the court of civil appeals may take judicial knowledge.

In her answer in the instant suit Mrs. Wright presented exceptions of a general nature addressed to the merits of the petition of the Kellys, which, as material here, were as follows:

"1. This defendant excepts specially to plaintiffs' petition and says that the same shows no cause of action against her; the said petition seeks relief through the equitable jurisdiction of this court, but fails to show any grounds for equitable relief, either in the main plea or the alternative plea.

"2. The plaintiff specially excepts to paragraph III for reason that the allegations therein fail to show any grounds for relief, and are irrelevant, immaterial, redundant and argumentative. Defendant specially excepts to Paragraph V. The allegations...