Luder's Adm'R v. State

• Decision Date: 18 December 1912
• Citation: 152 S.W. 220
• Parties: LUDER'S ADM'R v. STATE.
• Court: Texas Court of Appeals

152 S.W. 220

LUDER'S ADM'R v. STATE.

Court of Civil Appeals of Texas. San Antonio.

December 18, 1912.

Appeal from District Court, De Witt County; John M. Green, Judge.

Action by the State against Conradine Luder's administrator. From a judgment for the State, defendant appeals, and the State assigns cross-errors. Affirmed in part, and reversed and rendered in part.

Waldeck & Hartman, of Cuero, for appellant. F. S. Schleicher and H. W. Wallace, both of Cuero, for the State.

TALIAFERRO, J.

This action was brought by the state of Texas, by her county attorney of De Witt county, Tex., against Ed. Koenig, Sr., administrator of the estate of Conradine Luder, deceased, on an open account amounting to $1,761.42, alleged to be due the state of Texas by the estate of said Conradine Luder, deceased, for board and treatment of the said Conradine Luder at $5 per week for 352 2/7 weeks. Appellee filed this suit in the district court of De Witt county, Tex., on the 6th day of July, A. D. 1911. The petition alleged that Conradine Luder died in the Southwestern Insane Asylum in Bexar county, Tex., on the 22d day of May, 1910; that the appellant, Ed. Koenig, Sr., was on the 7th day of July, 1910, duly appointed administrator of her estate, and that on the 11th day of July, 1910, he qualified as such; that on the 31st day of October, 1896, the said Conradine Luder was adjudged a lunatic, and ordered confined in said asylum. Appellee also alleged that Conradine Luder was placed in said asylum and given board and medical treatment and assistance from October 31, 1896, to July 8, 1897, being 33 weeks; that on said 8th day of July, 1897, she was discharged from said asylum. Appellee further pleaded that on November 27, 1903, the said Conradine Luder was again adjudged a lunatic and ordered confined in said asylum, and that she was again placed in said asylum and given board and treatment for 319 2/7 weeks, namely, from March 29, 1904, to May 22, 1910, on which last-mentioned date she died. Appellee also pleaded that said asylum was established and is maintained by the state of Texas under the provisions of law for the care and treatment of insane persons; that all public patients, not indigent, shall be kept and maintained at the expense of the state in the first instance, but that in such case the state shall be entitled to reimbursement, and that not exceeding $5 per week shall be recovered for the support of any lunatic; that said Conradine Luder was not indigent, and that she and her estate were liable to reimburse the state for her support and treatment in said asylum at the rate of $5 per week for the entire period of 352 2/7 weeks, during which time she was confined in said asylum, amounting to $1,761.42. Appellee alleged that it kept and maintained the said Conradine Luder for said period of time, furnishing her with the necessaries of life, such as board, clothing and medical attention, and that same was reasonably worth $5 per week, which she thereby promised and became bound and liable to pay, but, though often requested, she wholly failed and refused so to do; that the same is past due and no part thereof has been paid, and that all of said sum is justly due and owing appellee; that appellee on July 1, 1911, presented its claim for said amount to the appellant herein, and that same was on the same day refused and rejected by him with his memoranda of his rejection thereof indorsed thereon. Appellee attached to its petition its said claim as a part thereof. The petition closed with a prayer for judgment establishing said claim against the estate of Conradine Luder, deceased, and for all costs.

Appellant, Ed. Koenig, Sr., as administrator of the estate of Conradine Luder, deceased, on the same day filed his original answer, consisting (1) of a general demurrer; (2) special exception to appellee's petition, and to the first item of the account thereto attached, because said item appeared on the face of said petition to be barred by the two years statute of limitation; (3) special exception to said petition, and to the second item of the account thereto attached, because it appeared on the face of said petition that all of said items up to the 11th day of July, 1909, were barred by the two years statute of limitation; (4) special exception to the sufficiency of said petition, because it did not allege that at the time Conradine Luder was adjudged a lunatic there was an affirmative finding upon special issues submitted to the jury that said Conradine Luder was possessed of any estate, nor that there were any persons legally liable for her support; (5) general denial; (6) plea of the two years statute of limitation as to the amount alleged to be due from October 31, 1896, to July 22, 1897; (7) plea of the two-year statute of limitation as to the items which were alleged to be due from March 29, 1904, to July 11, 1909; (8) special plea setting up that plaintiff ought not to maintain this action for the recovery of said item of $165 for 33 weeks board and treatment, because the period of time elapsing from the 8th day of July, 1897, when same is alleged to have become due, to the time of the institution of this suit, is so great that it raises a presumption of payment against appellee that would bar a recovery of said item, and that, by reason of said long lapse of time, same is presumed to be paid and fully discharged; (9) special plea that the plaintiff ought not to recover from defendant said item of $1,596.42 for board and treatment of said Conradine Luder, deceased, from March 29, 1904, to the 22d day of May, 1910, because it nowhere appears from the decree of the county court of De Witt county, Tex., entered on the 27th day of November, 1903, that there was a finding by the jury that the said Conradine Luder was possessed of any estate, that said jury affirmatively found that the said Conradine Luder was possessed of no estate, but that one William F. Bade was legally liable for her support; and (10) a plea in the alternative, setting up that said sum of $5 for all of the time that said Conradine Luder, deceased, was maintained in said institution is unreasonable and excessive.

The case was tried by the court without a jury. The court overruled appellant's general and special exceptions, and all of appellant's special pleas, except the plea in the eighth paragraph of his answer, setting up the long lapse of time against the item of 33 weeks of...