Keowne v. Love

• Decision Date: 06 November 1885
• Docket Number: Case No. 1734
• Citation: 65 Tex. 152
• Parties: T. A. KEOWNE ET AL. v. K. J. LOVE ET AL.
• Court: Texas Supreme Court

65 Tex. 152

T. A. KEOWNE ET AL.

v.K. J. LOVE ET AL.

Case No. 1734

Supreme Court of Texas.

Nov. 6, 1885.

APPEAL from Harrison. Tried below before the Hon. A. J. Booty.

Appellees, plaintiffs in the court below, alleged substantially that plaintiffs, except W. H. Poland, were the only heirs of Rene Fitzpatrick, who died in December, 1866; that A. Pope and T. A. Jones (now Keowne) were, in July 1867, legally appointed administrators of his estate and duly qualified as such, executing a bond for $60,000, with Womack, Ward and Lee as sureties; that letters were duly issued to Pope and Jones, and thereafter Pope, as one of the administrators, received thereby $33,000, the property of the estate, and that in August, 1867, he converted the same to his own use; that in July, 1869, the administrators were required by the county court to give a new bond, which they did about that time, Hall, Burnham and Hargrove being sureties thereon; that the bond was duly filed and approved; that R. H. Hargrove, one of the sureties on the new bond, died in 1879, leaving a will and a large estate, and Ann E. Hargrove was appointed, and was then acting as independent executrix of same; that when the new bond was given, Pope had in his hands, as one of the administrators, $35,000 in money, the property of the estate, and that about that date he converted it to his own use; that Pope died in 1872, indebted to the estate of Fitzpatrick in the sum of $50,000; that two of the defendants were appointed his administrators, and it was shown that the administrator, Keowne, took no steps to collect from Pope's representatives the amount of money belonging to Fitzpatrick's estate that he had converted to his own use, and that in November, 1881, Keowne was removed from the administration of the estate.

That the interest of George H. Slaughter in the Fitzpatrick estate was transferred to W. H. Poland in April, 1872, by power of attorney; that at the time Pope and Jones executed the new bond, Pope, as administrator of the Fitzpatrick estate, had in his hands about $17,500 in money of the estate; that during the time Pope administered the estate under the first bond, he became, with Hall, Burnham and Hargrove, sureties on the second bond, a dealer in stocks, and they invested about $17,500 of the estate funds in Southern Pacific railroad stocks, and his sureties on his first bond being uneasy, required him to give a new bond, whice he did as before stated, with Hall, Burnham and Hargrove as sureties; that the last named persons became such sureties upon Pope's depositing with them, as security, the stock, which was of the value of $25,000, and that the sureties converted the same to their own use.

Defendants answered by pleas in abatement, setting up misjoinder of parties defendant and of causes of action, and made the same point by special exception; they pleaded a general denial, the statute of limitations of four years, and that the plaintiffs perpetrated a fraud on the jurisdiction of the court in alleging the purchase by Pope, in conjunction with the sureties on the new bond, of railroad stock, during the existence of the first bond, the turning of the same over to the sureties and its conversion by them. They also set up various other matters of defense.

Plaintiffs filed general and special exceptions to the answer, and the court sustained special exceptions to the plea in abatement for misjoinder of parties defendant and causes of action. The case was tried before a jury, and they returned findings upon special issues submitted by the court, and upon the verdict the court gave judgment in favor of plaintiffs against the defendant, A. E. Hargrove, as executrix of the last will of R. H. Hargrove, deceased, and others, for the sum of $15,744.80; and the court gave judgment against the defendant, A. E. Hargrove, in her individual capacity, for $10,000, part of said $15,744.80. Defendant, A. E. Hargrove, and other defendants, filed motion to recover judgment against plaintiffs upon the special findings of the jury, which motion the court overruled.

James Turner testified, that on two or three trials between the heirs of the estate, with a view to partition, the deceased administrator,Pope, was a party, and testified that he had about $19,600 in coin, received by him as administrator of Rene Fitzpatrick; that he also held, as administrator, four or five thousand dollars in notes, the proceeds of the sale of personal property of the estate. Turner stated that the trials referred to took place about the years 1868 and 1869. J. W. Pope, son of the administrator, testified substantially what Turner did, all of which testimony was admitted over defendants sureties' objections. J. W. Pope also testified, over the objection of the sureties, that his father told him, in a conversation in the spring of 1870, that he was ready to settle with the Fitzpatricks, and could do it the next day. J. W. Pope further testified that he made out, under the direction of the father, exhibits to be filed in the probate court, showing the condition of the estate.

The fifteenth assignment of error was, the court erred in sustaining plaintiffs' special exceptions to appellant's answer, especially that which set up the statute of limitations of four years.

W. & N. A. Steadman, for appellant, A. E. Hargrove, cited: Love v. Keowne, 58 Tex., 200;Clegg v. Varnell, 18 Tex., 301;Frost v. Frost, 45 Tex., 340;Johnson v. Davis, 7 Tex., 173.

R. L. Hightower, Geo. Lane and T. P. Young, for appellees.

STAYTON, ASSOCIATE JUSTICE.

The first assignment points out no particular error, but simply alleges that the court erred in overruling exceptions to plaintiffs' petition. There were as many as twenty special exceptions filed and overruled, and it is well settled in such cases that an assignment such as is found in this record cannot be considered.

It is urged that the court erred in refusing to enter a judgment on the verdict for the defendants on their motion. The proper joinder of the sureties on the first and second bonds executed by the administrators was passed upon on the former appeal of this case, and the fact that the indemnity placed in the hands of the second set of sureties by one of the administrators was his own property and not the property of the estate, as alleged by the plaintiffs, cannot prejudice the right of the plaintiffs to a judgment against the sureties shown to be liable. They are protected as fully in the one case as in the other.

The question whether they were protected by property placed in their hands to indemnify them, however, does not affect the question of their liability to the plaintiffs, for that liability depends on their bond and the existence of facts which show liability on the part of their principals. An investigation became necessary to determine which set of sureties were liable, or whether both were liable for the whole or a part of the assets of the estate, and the court had jurisdiction over them for that purpose, which did not depend upon what might be the ultimate determination....