Love v. Keowne

• Decision Date: 15 December 1882
• Docket Number: Case No. 1277.
• Citation: 58 Tex. 191
• Parties: K. J. LOVE ET AL. v. T. A. KEOWNE ET AL.
• Court: Texas Supreme Court

58 Tex. 191

K. J. LOVE ET AL.

v.T. A. KEOWNE ET AL.

Case No. 1277.

Supreme Court of Texas.

Oct. 27, 1882.

Dec. 15, 1882.

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

Suit by Love et al., alleging that M. J. Love, H. C. Fitzpatrick, Thalia Dubois, F. W. Fitzpatrick, Mahone Fitzpatrick, Cornelia Horton, Nannie Dozier, Thomas Slaughter, William Slaughter, Thalia Slaughter, George Slaughter, represented by W. H. Poland, assignee, and Carrie Reese, who were plaintiffs, and T. A. Keowne, one of the defendants, were the only heirs at law of Rene Fitzpatrick, deceased; that said Rene died in December, 1866, at his residence in said county; that A. Pope and T. A. Jones (now Keowne) were, in July, 1867, by the county court of said county, appointed administrators of his estate, took the oath and gave a joint bond, with the defendants, John F. Womack and J. H. Lee, and one W. R. D. Ward, as sureties, in the sum of $60,000, which was approved and letters issued to them; that Ward died in May, 1871, and defendants A. G. Ward and A. G. Turney were appointed and were then acting as administrators of his estate; that after the issuance of letters to Pope and Jones, Pope, as administrator of Rene, in July, 1867, received $18,000 in United States gold coin, $10,000 in Spanish doubloons, and $5,000 in United States currency, the property of the estate, and in August, 1867, converted the same to his own use, and charging thereby a breach of the bond.

That in July, 1869, the county court, by an order on its minutes, required Pope and Jones (now Keowne) to give a new bond as administrators; that in obedience thereto, on or about that date, they executed a joint bond as such administrators in the sum of $45,000, with M. J. Hall, A. M. Burnham and R. H. Hargrove as sureties, which was approved and filed; that M. J. Hall died in May, 1871, leaving a will and a large estate, and that M. J. Hall, junior, defendant, was appointed and was acting as independent executor of same; that A. M. Burnham died, without leaving any children, in May, 1872, but leaving the defendant A. C. Burch, his surviving wife, and a large estate of community property, which was in possession of said Burch; that R. H. Hargrove died in 1879, leaving a will and a large estate, and defendant Ann E. Hargrove was appointed and is now acting as independent executor of the same. That at the time said new bond was given, said Pope had in his hands, as one of the administrators of said Rene, $20,000 in United States gold, $10,000 in Spanish doubloons, and $5,000 in United States currency, and that he on or about that date converted the same to his own use, and charging thereby a breach of the new or last bond.

That Pope died in May, 1872, while one of the joint administrators, without having settled the estate, and J. H. and W. H. Pope were appointed his administrators; that the estate had never been settled by either of the administrators; that A. Pope was at that time indebted to the estate in the sum of $50,000; that defendant Keowne, who was fully aware of such indebtedness, failed and refused to prosecute any suit against his legal representatives or sureties for the money; that those sums of money and other claims were the only property of the estate, except a tract of land in the possession of the heirs; that the ownership of the estate was in litigation between the heirs of said Rene until June, 1875; that the litigation was instituted in the district court of Harrison county against M. J. Love, H. C. Fitzpatrick and Mahone Fitzpatrick, by the other heirs; that the plaintiffs and defendants in that suit were children of different marriages of said Rene; that in June, 1875, a decree was rendered adjudging the estate to belong to the heirs in equal shares, and appointing the district clerk an auditor to take an account as to the amount due each heir, and report the same to the court; that the surviving administrator, Jones, refused to furnish any data by which an account could be taken; that it had never been taken; that all the papers relating to the estate had been lost or destroyed; that the plaintiffs were unable to allege how much of the estate was converted under the first bond and how much under the last bond; that there were no debts and no necessity for administration; that the surviving administrator, T. A. Keowne, was, on the 21st day of November, 1881, removed from said administration by the county court.

The defendants answered by general and special exceptions and a general denial, and the plea of the statute of limitations, to which was replied coverture, infancy, and idiocy as to some of the plaintiffs. The exceptions being in part sustained by the court, the plaintiffs filed a trial amendment, alleging that at the time Pope and Jones made the new bond, Pope had, as administrator of said estate, in his hands about $17,500; and that during the time Pope administered the estate under the first bond, he became, in connection with Hall, Burnham and Hargrove, the sureties on the new bond, a dealer in stocks, and they invested about $17,500 of the estate funds in Southern Pacific Railroad stocks; and his sureties, being uneasy, required him to give a new bond; and that Hall, Burnham and Hargrove became his sureties in the new bond upon his depositing with them as security said stock, which he did; that same was of the value of $25,000, and said securities converted the same, and prayed for an account to be taken as to the amount converted on each bond, for a discovery, and for general relief.

To this pleading the defendants urged, among others, the following exceptions:

1st. That the petition showed a misjoinder of parties defendant, it being improper to join the sureties on the first bond with the sureties on the second bond.

2d. Said petition failed to allege from what source, or from whom, the additional sums of money were received by Pope. The court sustained exceptions, and dismissed the case, rendering judgment final for the defendants. The plaintiffs excepted and gave notice of appeal.

The first and second assignments of error, which will be considered together, are as follows:

1st. The court erred in sustaining the pleas in abatement of the defendant setting up a misjoinder of parties defendant and causes of action.

2d. The court erred in sustaining the exceptions of the defendant as to a misjoinder of causes of action and parties defendant.

The third assignment of error is stated in opinion. The court below rendered a judgment dismissing the suit.

Geo. Lane, A. L. Hightower and T. P. Young, for appellants.

W. & N. A. Stedman, for appellee A. E. Hargrove, and James Turner, John T. Pierce and L. Aubrey, for appellees John H. Lee, John F. Womack, A. G. Ward and A. G. Turney.

I. There was a misjoinder of parties defendant. Neither courts of law nor of equity will take cognizance of distinct, separate and independent liabilities of different defendants in one suit, there being no connection nor collusion between them charged. Clegg v. Varnell, 18 Tex., 301;Frost v. Frost, 45 Tex., 340-41;Johnson v. Davis, 7 Tex., 174; Saxton v. Davis, 18 Vesey, 79; 1 Chitty on Pleadings, p. 44, title “Misjoinder.”

II. The liabilities of sureties on first and those on new bond were not joint and common, but several and distinct.

III. The administrators, by order of court, entered into new bond in July, 1869, and sureties on first bond were thereby relieved from further liability; and sureties on second bond thereafter became liable for any future default. Pasch. Dig., vol. 1, sec. 1292.

IV. This being an action on administrators' statutory bonds, is an action at law and not in chancery. Pasch. Dig., vol. 1, secs. 1282-83; Wright v. Leath, 24 Tex., 24;Jackson & Co. v. The Bourbon Justices, for the use of Robinett Heirs, 2 Bibb (Ky.), 293.

V. Although said second proposition of appellants may be correct as an abstract proposition of law, yet it has no application when one set of defendants, distinct from another set of defendants, are not charged to have received into their hands any of the trust funds in controversy.

VI. A petition filed against several persons concerning distinct things or acts is demurrable.

VII. Pleadings must be certain. General allegations, independent of time, place, persons or other circumstances of identity or certainty, are insufficient, and the special demurrer on this ground should have been, as it was, sustained. Mims v. Mitchell, 1 Tex., 443; Sayles' Pleadings, sec. 27, and authorities cited.

Alex. Pope, for appellees John H. and W. H. Pope.

I. The court did not err in sustaining the pleas in abatement of the defendants setting up the misjoinder of parties defendant and causes of action. Clegg v. Varnell, 18 Tex., 304;Frost v. Frost, 45 Tex., 341; J. C. DeGress v. R. B. Hubbard et als., Tex. Law Jour., vol. 4, No. 5, pp. 717, 718; Adams' Eq., p. 702; Story's Eq. Pl., sec. 539; Sterling v. Hensen, 1 Cal., 478;Newland v. Rodgers, 3 Barb. Ch., 432.

II. The court did not err in dismissing the suit and rendering judgment final against the plaintiffs and in favor of defendants. Jones v. Smith, 5 Paige, 137;Boyd v. Hoyt, 5 Paige, 65;6 Paige, 23;Woodruff v. Young, 43 Mich., 548; Am. Law Reg. (O. S.), vol. 6, p. 315; Williams and Wife v. Coward and Wife, Same v. Same, Am. Law Reg. (O. S.), vol. 11, p. 516; Fuller and Wife v. Railroad Co., Am. Law Reg. (O. S.), vol. 1, p. 567.

BONNER, ASSOCIATE JUSTICE.

The third error assigned in this case is, “that the court erred in dismissing said suit and rendering judgment that the plaintiffs take nothing by their said suit, and that the defendant go hence without day,” etc.

There can be but little doubt but that this assigned error is well taken as to the defendant T. A. Keowne. The petition set forth a good cause of action against her, and to that extent, at least, it should have been entertained. For this error the judgment must be reversed.

The first and second...