Lusher v. First Nat. Bank of Fort Worth

• Decision Date: 05 June 1953
• Docket Number: No. 15436,15436
• Citation: 260 S.W.2d 621
• Parties: LUSHER et al. v. FIRST NAT. BANK OF FORT WORTH et al.
• Court: Texas Court of Appeals

Page 621

260 S.W.2d 621

LUSHER et al. v. FIRST NAT. BANK OF FORT WORTH et al.

No. 15436.

Court of Civil Appeals of Texas, Fort Worth.

June 5, 1953.

Rehearing Denied Sept. 11, 1953.

McGee & Armstrong, and Elmo Irby, Fort Worth, for appellants.

Cantey, Hanger, Johnson, Scarborough & Gooch, and William B. Thompson, Fort Worth, for appellees.

MASSEY, Chief Justice.

From a judgment granting defendants a summary judgment, the plaintiffs appeal.

Affirmed.

During the summer of 1934, a Mrs. Mattie L. Lusher executed a deed, which was placed of record with revenue stamps affixed thereto. This deed purported on its face to be an unconditional conveyance of a one-half undivided interest in certain real property, to a Mrs. Henrietta A. Thomas. Both of these parties at the time in question were femmes sole. It appears that immediately prior to the time of the conveyance, Mrs. Lusher owed Mrs. Thomas notes, which, coupled with arrears taxes, totaled the sum of $12,526.40. Interest provided by the noted was seven per cent per annum. The consideration named in the deed of conveyance totaled $12,526.40, by way of recitation of the amounts of the notes and taxes. The indebtedness and the instruments evidentiary thereof were canceled under and by virtue of the transaction, and Mrs. Thomas was shown to have paid the taxes.

Simultaneously with the execution and delivery of the deed in question, Mrs. Thomas executed and delivered to Mrs. Lusher an instrument, in consideration of the conveyance by way of the deed, agreeing that in the event Mrs. Lusher should desire to repurchase the property as represented by the deed, before Mrs. Thomas might have an opportunity to sell the same to some third person, that Mrs. Thomas would reconvey said property to Mrs. Lusher upon payment by her, or her representative, of the sum of $12,526.40, plus seven per cent per annum interest from the date of the deed to the date of such reconveyance, plus amounts expended for taxes, insurance and repairs; and in the event that Mrs. Thomas should (before exercise of such right to repurchase) sell the property to some third person for an amount in excess of $12,526.40, plus seven per cent per annum interest thereon from the date of the deed in question to the date such conveyance might be made, plus amounts expended for taxes, insurance and repairs, agreeing to deliver said excess over to Mrs. Lusher. The agreement provided that its obligations should be binding upon Mrs. Thomas' heirs. It further provided that it should not be placed of record, and no party ever placed it of record.

Approximately six years later both Mrs. Lusher and Mrs. Thomas died, without there ever having been any affirmative action on the part of either of them with respect to the agreement in question, and in so far as the deed records of Tarrant County, Texas, were concerned, fee simple title to the property in question was in Mrs. Thomas. Each of said deceased persons left a set of heirs, and as to the estate left by Mrs. Thomas all or a part of the same was left in the hands of a trustee.

About the first of 1952, the title to the property in question having never been alienated save by inheritance through the will of whichever of the parties had authority in such respect, the heirs of Mrs. Lusher tendered to the heirs and trustee of Mrs. Thomas' estate an amount based upon the agreement to reconvey executed in 1934, and requested action on the part of the heirs and trustee of Mrs. Thomas' estate reconveying the property in question to said heirs of Mrs. Lusher. This was refused, whereupon the heirs of Mrs. Lusher filed suit in the district court of Tarrant County, Texas, to enforce the receipt by Mrs. Thomas' heirs and trustee of the money they were tendering, and a reconveyance of the property in question. The defendants in said suit, the heirs and trustee of Mrs. Thomas, filed a motion for summary judgment in their behalf, which was heard by the court and granted; from which judgment the plaintiffs, heirs of Mrs. Lusher, have appealed. There was a motion for summary judgment on dehalf of the plaintiffs heard at the same time, and by the trial court denied, and the appeal taken extends to this action of the trial court, jurisdiction attaching by reason of the granting of the plaintiffs' motion.

The appellees raise in their brief the contention that this court does not have jurisdiction of parties to the appeal for want of a proper appeal bond filed by them, and for want of an appeal bond filed by any party other than by nominal party, R. Wright Armstrong. It is noted that Armstrong was a party to the original suit as the husband of one of the heirs of Mrs. Lusher. The sole manner in which this court is requested to act appears in appellees' brief, where, after thoroughly briefing the point, it is said: '* * * this appeal should be dismissed as to anyone, other than R. Wright Armstrong, who might attempt to come in and claim to be an appellant, now that this contest of jurisdiction has been made, the ground of dismissal being that this Honorable Court has no jurisdiction over any of the parties plaintiff who conceivably could have become appellants because of the failure of such litigants to satisfy Rule 354 by execution of an appeal bond, and it is further respectfully submitted that as to the one litigant who has executed an appeal bond by being made a principal therein, Armstrong, the appeal should be affirmed because he is but a 'nominal party who is not affected by the judgment' of the court below.'

Rule 430, T.R.C.P., reads as follows: 'When there is a defect of substance or form in any appeal or writ of error bond, then on motion to dismiss the same for such defect, the appellate court may allow the same to be amended by filing in such appellate court a new bond, on such terms as the court may prescribe.'

The cause in the trial court was styled with John Oglesby Lusher et al. in the caption as plaintiffs, and in this court on the appeal with a like styling as appellants. As a matter of fact, the named plaintiffs in the trial court were John Oglesby Lusher and other named persons, all of whom constituted heirs under and by and through Mattie L. Lusher. In the original transcript appears the original cost bond on appeal, which was filed within the time provided by law to effectuate an appeal, reading as follows:

'Cost Bond on Appeal

'Whereas, in the above entitled and numbered cause pending in the 67th District Court of Tarrant County, Texas, and at a regular term of said Court, to wit, on the 22nd day of December, 1952, Judgment in favor of First National Bank of Fort Worth et al., defendants, was granted, from which judgment the plaintiffs, John Oglesby Lusher et al., desire to take an appeal to the Court of Civil Appeals for the Second Supreme Judicial District, sitting at Fort Worth, Texas:

'Now, therefore, know all men by these presents, that we, R. Wright Armstrong, as principal, and Mark McGee and C. L. Morris, as sureties, acknowledge ourselves bound to pay to Mrs. Lewis D. Wall, Jr., District Clerk of Tarrant County, Texas, $400.00 conditioned that the said John Oglesby Lusher et al., appellants, shall prosecute their appeal with effect and shall pay all the costs which have accrued in the Court below, and which may accrue in the Court of Civil Appeals and the Supreme Court.'

Appellees' brief was filed more than thirty days after the transcript. Hence, there is no question but what appellees have waived the right to contest this court's jurisdiction of the merits of the appeal, and they do not attempt to do this, except as such might fail as to parties. Williams v. Wiley, 1902, 96 Tex. 148, 71 S.W. 12; Pillow v. McLean, 1935, 126 Tex. 349, 88 S.W.2d 702; Neely v. Tarrant County, 1939, 132 Tex. 357, 124 S.W.2d 101.

Following the filing of the brief of the appellees, in which the question of jurisdiction was raised as indicated above, the parties named as appellants (and being all the parties plaintiff in the original suit) filed a motion for authority to file a supplemental transcript, and said supplemental transcript which was desired to be filed was attached to said motion and consisted solely of an instrument designated 'Amended Cost Bond on Appeal,' which had been filed in the trial court on May 1, 1953, which date was beyond the date on which an original bond supporting an appeal could have been filed. This 'Amended Cost Bond on Appeal' was executed by all the parties participating as plaintiffs in the trial in the court below, establishing that all the parties plaintiff in the court below were prosecuting an appeal from the judgment entered in that court, provided the filing thereof be allowed by us.

The question involved is the discretion of this court to allow the making of the substitution for the original bond filed. What this court might determine as to the extent of its jurisdiction of the case as to the parties, were the amended cost bond on appeal not a part of the record before us, is not a question to be here decided and we expressly do not write with respect to such a question.

It is apparent from a consideration of prior holdings in cases relating to appeal bonds that the stated objective of the rules of civil procedure, to obtain just trials under substantive legal principles, has been most liberally applied. A statement in this regard is observed to have been made by former Chief Justice Alexander in the case of Grogan Mfg. Co. v. Lane, 1943, 140 Tex. 507, 169 S.W.2d 141, 142, as follows: 'We think it is now well settled that if the appellant files and sort of an instrument which under a liberal interpretation may be said to be in fact a bond, same may be amended upon timely request, even though it be defective in either form or substance. * * *'

Chief Justice Hickman, while a member of the Commission of Appeals, and while T.R.C.S., Art. 1840, was effective (now T.R.C.P. 430), stated in the case of Pillow v. McLean, 1935...