Kempner v. Huddleston

• Decision Date: 23 November 1896
• Citation: 37 S.W. 1066
• Parties: KEMPNER v. HUDDLESTON.
• Court: Texas Supreme Court

Page 1066

37 S.W. 1066

KEMPNER v. HUDDLESTON.

Supreme Court of Texas.

November 23, 1896.

Certified questions from court of civil appeals of First supreme judicial district.

Action by C. E. Huddleston against Eliza Kempner to enjoin the collection of a judgment obtained by defendant on notes payable to plaintiff, which were sold, indorsed, and transferred to defendant by plaintiff's husband without her consent, and to have the judgment enforced for plaintiff's benefit. From a judgment in favor of plaintiff, defendant appealed to the court of civil appeals, which certified certain questions to the supreme court for determination.

For prior report, see 22 S. W. 871.

Gregg & Gardner, for appellant. Thos. B. Greenwood & Son, for appellee.

BROWN, J.

The court of civil appeals for the First supreme judicial district has certified to this court the following statement and questions: "The above-entitled cause is before this court on writ of error from the county of Anderson. I. N. Singletary executed two promissory notes to C. E. Singletary, a feme sole, for the purchase money of land. Each note is dated November 16, 1885, and payable 12 and 24 months after date, respectively, to C. E. Singletary or order. Some time in December, 1887, these notes were delivered by the payee to F. M. Huddleston, for safe-keeping, as she testified. Afterwards she and Huddleston were married. On February 1, 1889, Huddleston indorsed and delivered the notes to H. Kempner as collateral security for money advanced to Huddleston in cash. At the time of the indorsement of the notes to Kempner each had written thereon the following transfer: `For value received, I hereby transfer the within note to F. M. Huddleston. Dec. 15, 1887. [Signed] C. E. Singletary.' Mrs. Huddleston testified that she did not sign the transfers; that after their marriage Huddleston told her that during a recent illness of herself he had transferred the notes to himself, to enable him to collect them for her children in case of her death; and that afterwards he held possession of them for collection for herself and her children. On the other hand, there was evidence tending to show that the signatures to the transfers were in the handwriting of plaintiff. Kempner took the notes without notice of any rights of Mrs. Huddleston thereto, relying on the transfers. He afterwards brought suit against the maker of the notes, and obtained judgment thereon, with foreclosure of the vendor's lien. This suit was brought by Mrs. Huddleston to enjoin the collection of the judgment by Kempner, and to have it enforced for her own benefit. This is the second appeal of the case. The first appeal, which is reported in 3 Tex. Civ. App. 252, 22 S. W. 871, was decided on the authority of Walker v. Wilson, 79 Tex. 185, 14 S. W. 798, and 15 S. W. 402; but as, in the latter case, the note did not have a transfer indorsed thereon, it is deemed proper to certify the following questions for the decision of the supreme court: (1) Is the decision of this court on the first appeal in this case conclusive of the question then decided and now again presented for decision? What is the effect of the first decision of the question upon the same question on the second appeal? (2) If the plaintiff signed the transfers indorsed on the notes, and delivered them to Huddleston for collection only, or if, after the delivery of them to Huddleston for safe-keeping, he wrote and signed the transfers himself, and afterwards told her of it, and she permitted him to retain the notes for the purpose of collection only, would she be estopped to dispute the title of Kempner, and set up her right to the proceeds of the notes? (3) If Mrs. Huddleston did not write or execute the transfers before her marriage to Huddleston, but was informed of it by him afterwards, and permitted him to retain them for collection only, would the fact that she was the wife of Huddleston at the time affect the question of estoppel?"

To the first question propounded we answer that the former decision of the court in this case constitutes no bar to the further consideration of the same question upon a second appeal. Burns v. Ledbetter, 56 Tex. 282; Railway Co. v. Faber, 77 Tex. 153, 8 S. W. 64; Bomar v. Parker, 68 Tex. 435, 4 S. W. 599. In Railway Co. v. Faber, cited above, the court said: "Upon a second or other subsequent appeal this court adheres to its former rulings, unless clearly erroneous." The question as to whether the court will reconsider, upon a second appeal, what it has formerly decided in the same case, must always be addressed to the discretion of the court, and determined according to the particular circumstances of that case.

The second and third questions propounded by the court of civil appeals really embrace three questions, which, for convenience of answering, we will divide and state as follows: (1) If Mrs....