Lofstedt v. Gulf Paving Co., 11660.

• Decision Date: 21 December 1944
• Docket Number: No. 11660.,11660.
• Citation: 185 S.W.2d 203
• Parties: LOFSTEDT et al. v. GULF PAVING CO.
• Court: Texas Court of Appeals

185 S.W.2d 203

LOFSTEDT et al. v. GULF PAVING CO.

No. 11660.

Court of Civil Appeals of Texas. Galveston.

December 21, 1944.

Rehearing Denied February 1, 1945.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Harris County; W. W. Moore, Judge.

Suit by Gulf Paving Company against Carl J. Lofstedt and wife to foreclose a paving assessment lien and to foreclose an attachment lien. The defendant wife having died, plaintiff filed an amended petition against Carl J. Lofstedt individually and as independent executor of his wife's estate, and as trustee for her two minor children, and others. From an adverse judgment, the defendants appeal.

Reversed and remanded with directions.

J. S. Bracewell and Fentress Bracewell, both of Houston, for appellants.

Milton H. Mulitz and Elbert Roberts, both of Houston, for appellee.

CODY, Justice.

This is a paving assessment lien suit. It was brought by appellee, the paving company, hereafter called plaintiff, in 1940, against Zerline Rodgers Lofstedt, and husband, Carl J. Lofstedt. The property upon which plaintiff claimed to have established a paving lien is a certain lot in the City of Houston, hereafter described.

Sometime before the case came on for trial Mrs. Lofstedt died, and her will was duly probated in Harris County by her surviving husband. Thereafter, by its first amended original petition, upon which it went to trial, plaintiff proceeded with the suit against the surviving husband, individually, and as independent executor of her estate, and as trustee for her two minor children — her sole children. These children, Carl Frederick Lofstedt¹ and Carol Ruth Lofstedt, were also made parties defendant, and duly served with citation.

Plaintiff's said petition alleged that the paving certificate sued on was for the principal sum of $1,155, bearing interest at the rate of 7% per annum from August 16, 1939, and providing for reasonable attorneys' fees. The steps by which it was claimed that the paving assessment lien was created upon the lot in controversy were alleged at length and in detail. The suit was also brought to charge the true owners of the lot with personal liability for the amount of the assessment, whether correctly named or not. This specific allegation will hereafter be discussed: "That each defendant herein is claiming some right, title or interest in and to the property herein described, the exact nature of which is well known to said defendants, and which right, title or interest, if any, is junior, inferior and subject to the charge and liens of Plaintiffs." The suit also sought to foreclose an attachment lien.

(It seems that at the time the suit was filed the employer of C. J. Lofstedt had sent him to do some engineering work in the Argentine, and his wife accompanied him. We infer that because personal service could not be had at the time, and because the defense of homestead was anticipated, plaintiff had a writ of attachment issued, so as to give substance to a judgment establishing personal liability for the assessment if the plea of homestead was sustained.)

A joint answer was filed for Carl Frederick and his sister, by their attorney of record, who acted for them as attorney ad litem under appointment of court. Such answer traversed the petition, and specially pled that said answering defendants own the beneficial interest in the lot in question in virtue of a trust agreement executed by Carl J. Lofstedt, July 8, 1942; and further answered that, except for a community interest in the improvements upon said lot belonging to the said C. J. Lofstedt, was the separate estate of their deceased mother, and was the family homestead at all material times, and exempt. The other special defenses of the answer were, during the trial, struck out, and the court refused to hear evidence thereon. Said defendants reserved their bill of exceptions thereto.

Defendant Carl J. Lofstedt filed a separate answer adopting the aforesaid answer of his codefendants, and in addition plead special defenses. In the same ruling by which the court struck all defenses except the plea of homestead from his codefendants' answer, the court likewise struck all defenses from his answer except the plea of homestead and he joined in the aforesaid bill of exceptions.

The sole issue submitted to the jury was the defense of homestead, which was answered favorably to defendants.

The court then rendered judgment upon said finding, and upon the court's independent findings:

The court found that plaintiff's suit was upon a liquidated demand against Mrs. Zerline Rodgers and husband, to-wit: a paving assessment certificate for the principal sum of $1,155, bearing interest at the rate of 7% per annum, and providing for reasonable attorneys' fees. The accumulated interest at the date of judgment was found to be $463.81 and found that $500 was the reasonable attorneys' fees for plaintiff.

The court found that the writ of attachment was duly levied upon certain lots in the City of Houston (describing them) belonging to Mrs. Lofstedt, and adjudged that an attachment lien was duly perfected, and foreclosed it.

The court further found that Carl Frederick, in an action brought for that purpose in Harris County, had had his disabilities of minority removed on December 1, 1943, which was at a time subsequent to the service of citation on him; and further found at that time, and now, he was and is in the military service, and that the court had appointed the Honorable J. S. Bracewell, of the Houston Bar, "to represent said minor (meaning Carol Ruth) and said soldier."

The judgment provided: That plaintiff "do have and recover from defendants, C. J. Lofstedt as executor and trustee of the estate of Zerline Rodgers Lofstedt and as trustee for Fred McDuffie, Jr., (meaning Carl Frederick), and against Fred McDuffie, Jr., individually and Carol Ruth Lofstedt, individually, and against Fred McDuffie, Jr., and Carol Ruth Lofstedt, both jointly and individually, the sum of Sixteen Hundred, Eighteen Dollars and Eighty one cents ($1618.81) together with interest thereon at the rate of seven per cent (7%) per annum, from the date of judgment until paid, together with Five Hundred Dollars ($500.00) attorney's fees, with interest from this date at the rate until paid at six per cent per annum, and all costs of court herein incurred, to the extent of the value of the property received by them from the estate of Zerline Rodgers Lofstedt; * * *."

Defendants alone excepted to the judgment, or perfected an appeal therefrom.

Because of the unavoidable length of this opinion the points upon which defendants rely for reversal can only be indicated as they are hereafter ruled on.

Opinion.

There is no merit to defendants' contention that Carl Frederick was not subject to the court's jurisdiction at the time judgment was rendered herein. The contention is based upon the conception that the removal of his disabilities after he was served with citation, but before the case was tried, divested the court's jurisdiction over his person. The service of citation upon him haled his person into court irrespective of any consent on his part. The court's jurisdiction over his person being in no sense dependent upon his consent, the removal of his disabilities of minority did not vest him with power to repudiate the jurisdiction over his person which had attached irrespective of any consent on his part. By the removal of his disabilities he became full age, prospectively, for all purpose of the litigation. R.C.S. art. 5921. And being sui juris, it would have been erroneous for the court to appoint a guardian ad litem to represent him in the suit. But such an appointment would have constituted an erroneous, not a void, exercise of the court's jurisdiction over him. Sweet v. Berry, Tex.Civ.App., 236 S.W. 531. The disabilities attaching to the status of minority do not include disability to be haled into court by service of citation, and the removal of a minor's disabilities did not disable the court from exercising a jurisdiction theretofore acquired over his person. Of course, death would have done so.

This cause was originally set for trial for February 7, 1944. Defendant, C. J. Lofstedt, filed a motion to strike such setting. Among the grounds urged in his motion was this: "* * * That the testimony of said defendant (Carl Frederick) in person is necessary for protection of his interest herein; that said defendant is now in the United States Army, having been inducted through selective service, and in all probability cannot be available for a trial of this case until after the termination of the war." It will be noted that the motion does not specify in what respect his testimony was necessary, or what his testimony would relate to. In a suit of this character the evidence of a paving company is, to all intents and purposes, record evidence, showing the steps taken to establish a lien. The only defense pled by defendants which the court permitted to be tried was the defense of homestead. And that alone rested in parol.

Though the motion in this instance was limited to asking for a stay in order that he might testify in person, and failed to state the nature of the testimony which he would give, such motion must be construed liberally, as it relates to one in the military service. Section 521, 50 U.S.C.A. Appendix (Soldiers, etc., Relief Act, 1940) provides: "At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant * * * may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of * * * the defendant to conduct his defense is not materially affected by reason of his military service."

The words of the Act just quoted were construed in Boone v....