Lubell v. Sutton, 5958.

• Decision Date: 09 July 1942
• Docket Number: No. 5958.,5958.
• Citation: 164 S.W.2d 41
• Parties: LUBELL v. SUTTON.
• Court: Texas Court of Appeals

164 S.W.2d 41

LUBELL v. SUTTON.

No. 5958.

Court of Civil Appeals of Texas. Texarkana.

July 9, 1942.

Rehearing Denied July 30, 1942.

Appeal from District Court, Smith County; Nat W. Brooks, Judge.

Action by Samuel L. Lubell, trustee, against A. M. Sutton to recover upon a foreign judgment. From a judgment for defendant, plaintiff appeals.

Reversed and rendered.

Pollard, Lawrence & Reeves and Geo. P. Blackburn, all of Tyler, for appellant.

Mayfield, Lee & Lantz, of Tyler, for appellee.

JOHNSON, Chief Justice.

This suit was filed October 1, 1936, by appellant, Samuel L. Lubell, trustee, against appellee, A. M. Sutton, upon the proceedings of an Arkansas Chancery Court, alleged to be a final judgment, upon which there is a balance due of $79,691.02 and interest thereon from February 25, 1927, at the rate of 8% per annum. By special exceptions to the petition and as a defense to the suit, appellee pleaded that the alleged proceedings in said chancery court were interlocutory and did not constitute a final judgment. Appellee further pleaded that the deficiency or balance due upon such judgment after applying the proceeds of the sale of the property upon which a foreclosure of a deed of trust lien was had in said cause, had been discharged, or, in the alternative, that appellant was estopped to assert that it had not been discharged, because of an agreement entered into between appellant and appellee, prior to said foreclosure sale whereby appellee agreed to and did thereupon refrain from delaying, hindering or obstructing said sale, and from filing a voluntary petition in bankruptcy, upon appellant's agreement to waive any deficiency or balance remaining unpaid upon said judgment after crediting it with the proceeds of said foreclosure sale.

In response to special issues the jury found that appellant and appellee did enter into the agreement as alleged by appellee, and that in reliance upon such agreement appellee ceased his efforts to delay or hinder said foreclosure sale or to institute said bankruptcy proceedings.

Appellant filed a motion for judgment non obstante veredicto; and appellee filed a motion for judgment (1) upon the verdict of the jury; and (2) upon his plea that the judgment sued upon was not a final judgment. Upon hearing said motions, the court concluded that the facts found by the jury constituted no defense to appellant's suit because the agreement entered into by and between appellant and appellee as affecting said foreclosure sale was against public policy, but the court further found that the uncontradicted evidence introduced upon the trial of the present case showed that the judgment sued upon by appellant was interlocutory and does not constitute a final judgment, and upon that ground the court entered judgment that appellant take nothing.

Point 8 asserted by appellant raises the contention that the trial court erred in finding and holding that the evidence in the present suit shows that the judgment sued upon was not a final judgment.

The record of the proceedings of the Arkansas chancery court introduced in evidence in the present suit shows that in 1926 Mrs. Janet Hughes as plaintiff filed in the Chancery Court of Ouachita County, Arkansas, cause No. 1027, against Sutton Oil Company, a corporation, A. M. Sutton, Ben Sutton, and Samuel L. Lubell, trustee, as defendants. Subsequently Samuel L. Lubell, trustee (appellant herein), filed in said suit a cross-complaint against Sutton Oil Company, A. M. Sutton, and Ben Sutton as cross-defendants to recover the balance due upon certain notes theretofore executed by said cross-defendants and to foreclose a deed of trust lien given to secure payment of said indebtedness, on certain oil properties owned by Sutton Oil Company.

On November 15, 1926, a hearing of said cross-complaint was had before the chancery court and a decree entered therein reciting the appearance of the parties, and that the cause was submitted to the court on the pleadings, notes, deed of trust and verified account filed by cross-complainant, and that by consent of the parties it was ordered, adjudged and decreed that said cross-complainant do have and recover of and from Sutton Oil Company, A. M. Sutton, and Ben Sutton, jointly and severally, the sum of $155,174.90, together with interest thereon at the rate of 8% per annum from October 18, 1926, until paid, "and that cross complainant, Samuel L. Lubell, Trustee, may have execution or writ of garnishment, in form as upon a judgment at law, for the same or any part thereof that may remain unpaid after the proceeds of the sale of the property therein provided for shall be credited upon the amount thus adjudged to be due." It was further decreed that cross-complainant have a foreclosure of the deed of trust lien on the property described, and that said lien was superior and paramount to any and all rights of defendants, or any other person claiming an interest or equity in said property acquired since the filing of said mortgage on May 19, 1925, "except such claims as may be adjudged in this action to be prior to said mortgage upon a final hearing herein on exceptions filed to the master's report." The decree further provides that unless the judgment is paid within 30 days the property be sold by the commissioner appointed by the court after advertising, same as provided for in the decree. The decree further provides that in the event cross-complainant become the purchaser at such sale, the judgment be credited with the amount of his bid, less the court costs, and fees of commissioner and master and receiver therein; "and the amount of such claims as may be held to be prior to the rights of said Samuel L. Lubell therein upon a final hearing on exceptions filed to the master's report herein * * *." The decree then concludes as follows:

"That D. W. Harrell, master and receiver herein, is hereby appointed as commissioner of this court to execute this decree, and is directed to make the sale, as herein provided for and to report his actions hereunder to this court.

"The rights of priority as between Samuel L. Lubell and the intervenors herein and all lien claimants who have filed claims herein, are expressly reserved for later adjudication, it being the intention of the court...