Matthews v. Looney

• Decision Date: 25 January 1939
• Docket Number: No. 2200-7246.,2200-7246.
• Parties: MATTHEWS et al. v. LOONEY et al.
• Court: Texas Supreme Court

Page 871

123 S.W.2d 871

MATTHEWS et al. v. LOONEY et al.

No. 2200-7246.

Commission of Appeals of Texas, Section A.

January 25, 1939.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Will contest by Mrs. Mattie Looney and others, contestants, and interveners, against Mrs. Hattie Marshall Matthews and others, proponents. To review a judgment of the Court of Civil Appeals, 100 S.W.2d 1061, affirming judgment adverse to proponents rendered by the district court, proponents bring error.

Judgments of Court of Civil Appeals and of district court reversed and remanded.

H. S. Bonham, J. A. Wood, M. W. Pitts, Jr., and W. E. Pope, all of Corpus Christi, for plaintiffs in error.

John C. North, Kleberg & Eckhardt, and Sidney P. Chandler, all of Corpus Christi, for defendants in error.

GERMAN, Commissioner.

On June 10, 1927, plaintiffs in error filed application for probate of a certain will in the County Court of Nueces County, Texas. The will was contested by a part of the defendants in error. Other parties intervened and they are also defendants in error. The will was admitted to probate, and contestants and interveners appealed to the District Court of Nueces County. The case was set for trial in the district court on November 22, 1932. On that date the attorneys for all parties appeared in open court and announced that they had agreed upon a settlement of the case. The trial judge thereupon made the following notation upon his docket:

"11/22/32. Judgment by agreement, probating will fixing lien on property in favor of contestants and interveners, as per decree."

At the time the announcement was made no decree had been prepared, although the parties thought they had mutually agreed upon the various details. It appears, however, that when preparation of the decree was undertaken some differences arose between the attorneys. One of the differences concerned the number and amounts of certain notes that were to be executed by the proponents of the will to one set of the parties. This difference appears to have been finally worked out. It further appears, however, that a difference arose concerning delinquent taxes against certain of the property affected by the will. There is a sharp conflict in the evidence as to whether or not this matter was mentioned, or taken into consideration, prior to the time announcement of the settlement was made. After a reading of all the testimony, one thing stands out as certain: No formal decree signed by attorneys for all parties was ever presented to the court for approval, or to the clerk for entry.

On November 18, 1933, contestants and interveners filed motion for entry of judgment nunc pro tunc, attaching to their motion form of judgment which they alleged contained the terms of the agreement which the parties had made at the time of the announcement in open court of settlement. This motion was contested by plaintiffs in error, they denying that the form of judgment offered for entry had ever been agreed to in its details by them, and further denying that the parties had ever finally agreed upon the terms of the judgment, for the reason that the matter of delinquent taxes was by oversight left undetermined, or had never been in any manner disposed of by agreement.

On July 13, 1935, trial was had upon the motion to enter judgment. Much testimony, consisting largely of that of interested attorneys, was taken. This testimony appears to have related almost altogether to negotiations and discussions between attorneys prior to the announcement in court, and for some months thereafter. From this testimony it appears that the court manifestly was trying the question of whether or not there had ever been an agreement reached by the parties, and was attempting to reach a conclusion as to the terms of the agreement which they had actually made. There appears to have been no dispute as to what was actually announced in open court, and which was nothing more than what is indicated by the notation. On one or more points the evidence of the attorneys was contradictory and conflicting. The trial court, upon the conflicting evidence, sustained the motion and entered the judgment tendered by defendants in error, effective as of November 22, 1932. Briefly, it may be said that this judgment, after purporting to probate the will in question, affixed a lien against certain real estate in the City of Corpus Christi to secure six notes in favor of contestants in the total sum of $1500, and six notes in favor of interveners for the total sum of $1750; said notes to bear interest at the rate of six per cent per annum. The judgment fixed the amounts of certain of the notes and their various due dates. It also apportioned one half of the unpaid costs against proponents of the will, one fourth against contestants, and one fourth against interveners. This judgment was affirmed by the Court of Civil Appeals. 100 S.W.2d 1061.

This is not an effort to enter nunc pro tune a judgment pronounced by the court and evidenced by notation upon...