Linn v. Arambould

• Decision Date: 07 October 1881
• Docket Number: Case No. 2765.
• Citation: 55 Tex. 611
• Parties: JACOB LINN AND WIFE v. C. ARAMBOULD.
• Court: Texas Supreme Court

55 Tex. 611

JACOB LINN AND WIFE

v.C. ARAMBOULD.

Case No. 2765.

Supreme Court of Texas.

Oct. 7, 1881.

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

Suit brought by Concepcion Arambould (the former wife of Ignacio Perez, deceased), joined by her present husband, Refugio Arambould, in behalf of herself and her two minor children, Josefa and Trinidad Perez, by her first marriage, against Jacob Linn and wife, to set aside conveyances made by Ignacio Perez during his lifetime, and shortly before his death, of certain parcels of land specified in the petition, conveyed to Jacob Linn and his wife. The petition also alleged that said Ignacio Perez had alike sold, by bill of sale, certain horses and cattle to Jacob Linn; all of which sales and conveyances plaintiffs alleged were invalid; that they were made without consideration, and obtained from said Perez through fraud, and by operating upon the fears of Perez, who, it is alleged, was at the time imbecile, and wholly incapable of making a valid contract. The plaintiffs prayed for a cancellation of the deeds, and for $2,500 damages. The defendants denied specially and generally each of the grounds set up by plaintiffs of such invalidity. The full merits of the issues formed by the parties need not be fully set forth here, in view of the opinion expressed as to the jurisdictional question involved in the appeal, and the determination of which depends upon the construction to be placed upon the proceedings had in the district court in ascertaining whether an appeal lies to the supreme court from the judgment which has been rendered.

The answer of the defendants alleged the payment by them of full value of the property conveyed to them, and prayed that in case it should be determined that they had acquired no title to the property in controversy, that they should have judgment for the several sums paid by them to Ignacio Perez for the property, with legal interest from the dates of payment, and that the property be decreed to be sold to pay the same, and for such other orders, judgments and decrees as may seem necessary, etc.

The cause was submitted to a jury, and the judge charged them as to the law applicable to the issues made in the case; the instructions given contemplated a general verdict upon the entire case, and, among other things, the jury were instructed that in case they found for the plaintiffs, requiring the cancellation of the deeds, in that event they are required to find a verdict for the defendants for such amount as they believed from the evidence was paid by Linn and wife to Ignacio Perez, together with interest at the rate of eight per cent. from the date of the deed.

The defendants in their answer alleged that before the death of Ignacio Perez, whilst he was in need of pecuniary aid and a home, that Linn had at great expense provided for him by boarding him in his family, and supplying his wants, etc., at a cost of from about $1,700 to $2,000. They alleged that the parcels of land conveyed to them were worth respectively about $1,100, and $300 or $400; that said Linn purchased from said Perez about fifteen or twenty head of horses, at the price of $15 per head.

There was evidence tending to establish the fact that the defendant Linn had, as alleged, furnished a home to Perez, and had boarded him, and otherwise furnished him with means and comforts to some extent--to what precise amount the testimony does not fully or clearly show. It is to be inferred from the pleadings and the evidence, that the defendant Linn relied upon his advances to Perez as evidence to show that the amounts thus paid, and the advances made for his benefit, entered into the consideration of the conveyances made to him and his wife of the land and the stock of horses.

The verdict of the jury was as follows: “We, the jury, find for the plaintiffs, and think that the stock of horses, valued at $350, purchased or got of the plaintiffs, would compensate the defendants for all the charges and claims and interest thereon to date.”

The judgment of the court proceeds to decree a cancellation of the deeds in the usual form, and concludes as follows:

“It is further ordered, adjudged and decreed, that the heirs of Ignacio Perez, Jr., deceased, be forever quieted in their title in and to the property set forth in said deeds of conveyance, and that a writ of restitution be issued, placing them in possession of the same, and that they be quieted in their possession thereto, and that they have and recover of and from the defendants Jacob Linn and his wife, Josefa Perez de Linn, all costs in this behalf expended, for which execution may issue. But inasmuch as there has been a new trial granted to the defendants in regard to the issue raised by the pleadings as to the amount of the purchase money paid by the defendants to Perez, it is ordered that the foregoing decree of cancellation shall be inoperative and held in abeyance until such time as the issue respecting the purchase money shall have been fully and finally adjudicated, and the amount so ascertained to be due the defendants for the purchase money as aforesaid shall have been paid into court.”

The order made upon the motion for new trial was to the effect that the same is overruled “as to the verdict in favor of plaintiffs as to the incapacity of Ignacio Perez, but granted in regard to the question of the verdict in favor of Jacob Linn, which issue will be retried.”

Waelder & Upson, for appellants.--We have no hesitancy in expressing the opinion that the order of the court, partially overruling and partially granting appellants' motion for a new trial, was erroneous. That the entry of the decree in its present form was equally erroneous seems as clear. But the question still recurs, at what stage of the proceedings can the defendants have their appeal, and how far would they be debarred by apparently acquiescing in the first judgment and going into the trial of the second issue? As the judgment is not strictly an interlocutory order, can this court so render its decision now as to settle the question of practice without prejudice to the parties, and pass its opinion upon the propriety of setting aside a part and sustaining another part of a verdict? In other words, can the court so dispose of the present record as to remand the case to the district court for another trial of all the issues, so as to secure a final judgment, which will settle all questions between the same parties?

It is true that “any judgment or decree, leaving some further act to be done by the court before the rights of the parties are determined, and not putting an end to the action in which it is entered, is interlocutory.” Freeman on Judg., p. 9, § 12. “But,” says the same author, “if it so completely fixes the rights of the parties that the court has nothing further to do in the action, then it is final.” Ibid.

In the case at bar all the rights of the parties are not determined. But the plaintiffs pray for a cancellation of deeds. This prayer is granted so completely that the court has nothing further to do in regard to it. The decree, it is true, is made conditional, but the question of cancellation is so fully passed upon that it cannot be reopened without a reversal of the judgment.

On the other hand, the answer of the defendants prays for reimbursement of money paid in case of cancellation. This is a plea in reconvention; and while it is an issue in the case, and should be disposed of together with the other issue, the court below has seen proper to make it a distinct and separate question, raised by the defendants, and not in the original action.

Says the author before quoted: “Sometimes several issues of law and of fact are presented for the consideration of the court in the same suit or proceeding. In such case there can be no judgment from which an appeal may be taken until all the issues are determined.” Freeman on Judg., p. 13, § 20, referring to King v. Stafford, 5 How. Pr., 30;Bentley v. Jones, 4 How. Pr., 335. These decisions were, however, made under the New York code of practice, and cannot, therefore, control our practice under our blended system of law and equity.

In equitable proceedings--and this is an equitable proceeding,--it is more difficult to determine what is a final decree. So we find in Freeman's work, that “a decree is none the less final because some future orders of the court may become necessary to carry it into effect.” Page 14, § 24, referring to Mills v. Hoag, 7 Paige, 18;Johnson v. Everett, 9 Paige, 636;Quackenbush v. Leonard, 10 Paige, 131;Dickinson v. Codwise, 11 Paige, 189;Stovall v. Banks, 10 Wall., 583.

Merle v. Andrews, 4 Tex., 200, is more nearly, though not altogether, like the case under consideration than any of the cases heretofore adjudicated by this court--at least so far as we have been able to find. There the decree decides the right to property, reserving the adjustment of accounts for further action. This decree was held to be a final judgment.

Bethel Coopwood, for appellees.

WALKER, P. J. COM. APP.

The defendants having appealed, and assigning errors in the record for our consideration, we must first determine whether the supreme court has jurisdiction to entertain this appeal. If the judgment rendered by the district court is not a final judgment, as has been uniformly held, there does not lie an appeal from it.

The standard of the finality of a judgment was thus tersely stated by Justice Smith: “When the whole of the matter in controversy is disposed of as to all the parties, then there is a final judgment, and not before, from which an appeal or writ of error can be taken.” The right of appeal, it is said, is regulated and determined in many, perhaps most of the other states, by a similar requirement, as respects the finality of the judgment complained against, as that which exists in this state; giving rise, therefore, to numerous adjudications illustrative of the...