Matthews v. Looney

• Decision Date: 23 December 1936
• Docket Number: No. 9892.,9892.
• Citation: 100 S.W.2d 1061
• Parties: MATTHEWS et al. v. LOONEY et al.
• Court: Texas Court of Appeals

100 S.W.2d 1061

MATTHEWS et al. v. LOONEY et al.

No. 9892.

Court of Civil Appeals of Texas. San Antonio.

December 23, 1936.

Rehearing Denied January 27, 1937.

Appeal from Twenty-Eighth District Court, Nueces County; W. B. Hopkins, Judge.

Will contest by Mrs. Mattie Looney and others, contestants and interveners, against Mrs. Hattie Marshall Matthews, and others, proponents. From the judgment rendered, proponents appeal.

Affirmed.

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

Kleberg & Eckhardt, J. C. North, and Sidney P. Chandler, all of Corpus Christi, for appellees.

BOBBITT, Justice.

This appeal grows out of a will contest in Nueces county. Appellants here were the proponents in the probate court, where the will was admitted to probate, and of course the contestees in the district court, on appeal from the probate court. Appellees here were the contestants and interveners in the Twenty-Eighth district court of Nueces county, where they challenged the validity of the order of the probate court admitting the will to probate, and upon the grounds of alleged lack of testamentary capacity on the part of the testator and the exercise of undue influence over the mind and will of the testator.

The parties, it appears, reside in the states of Oklahoma and Tennessee. When the case was called for trial in the district court, they all appeared in person and by their respective attorneys. Three separate groups of attorneys appeared in the case; one group represented the contestants, another separate group the interveners, and the third represented the contestees. There was only a small amount of property involved, but a number of litigants were concerned and all were represented by able counsel. Upon the call of the case for trial in the district court, all of the parties, acting through their respective attorneys, and after conferences and discussions between themselves, announced to the court, in open court, that all matters in controversy had been adjusted and settled and requested the court to pronounce judgment to that effect. The learned, experienced, and indulgent trial judge respected such announcement on the part of all the parties through their attorneys, and properly asked for the form of agreed judgment acceptable to all the parties, that it might be duly entered. He was informed that the parties had just agreed upon the settlement; that the form and details of the judgment had not been written out, but that the agreement satisfactory to all concerned had been made, and that the attorneys would proceed to write up the judgment for formal entry at a later time. The trial judge was then, in open court, requested to note upon his docket the fact that the case had been settled by agreement, as well as the substance of the judgment he had been asked to pronounce, and the following entry was thereupon made on the docket:

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

Following such action by the court, the case was, by all concerned, considered definitely ended. The litigants returned to their far-away homes and residences in the states of Tennessee and Oklahoma. The attorneys, pursuant to the agreement made in open court and in accordance with, and following the action of the trial judge in pronouncing the judgment as requested by all of the parties, proceeded to prepare the decree for formal entry. The record shows that the form of the judgment was drafted by one of the attorneys for the contestees, — appellants here, — and by him submitted to the other attorneys for their approval. It appears that all of the remaining attorneys approved and signed such draft as thus prepared, except one of the attorneys for the interveners. It is shown that this one attorney desired to have the notes which were agreed to be given in the settlement made in amounts different than the amounts originally agreed between the parties. The total amount of the obligation was in no way to be affected. This request for a change in the notes was solely for the personal convenience of such attorney and one of the attorneys for the contestees in connection with their personal affairs and related to their respective interests in the notes as attorneys fees. Such attorney, furthermore, misunderstood the agreement upon which the judgment had been pronounced to the extent that the said notes should bear 6 per cent. interest per annum instead of 7 per cent., as he thought. There was some delay, some conferences and correspondence between some of the attorneys and some of the parties in an effort to work out the form of the notes for the convenience of the attorneys. In the meantime, it appears that the attorneys for the contestees, appellants here, checked up and ascertained that there were some delinquent taxes due against the property concerned, which fact or situation they had not theretofore investigated and were not apprised of, at or prior to the time the case was settled and judgment pronounced as above stated.

It is clear, from the record before us, that the question or issue of agreeing on the form of the judgment between the attorneys was then switched from a request of two of the opposing attorneys for a convenient change in the amount of the notes to the more serious matter of who was going to pay the taxes assessed against the property.

In any event, the attorneys could not, or did not, agree upon the form of the judgment to be entered, and the term of the court expired. It is shown that the attorney for interveners, prior to the closing of such term of court, agreed to the form of the judgment as drafted by the attorneys for appellants, waived his request for a change in the form of the notes, and urged the attorneys for appellants to join him in getting the judgment entered at that term of the court, in accordance with the settlement as made and the action of the court thereon. The attorneys for appellants refused to join in the request for or permit the entry of the form of judgment which they had themselves drafted following the settlement of the matters and the announcements made in open court. It seems to be conceded by the attorneys for appellants that their position and contention are in reality based upon the proposition of the existence of delinquent taxes against the property instead of the form of the judgment or the authority of the court to enter the judgment under the circumstances as developed in connection with the differences over the form of the decree or the expiration of the term of the court. The question of taxes did not enter into and was not a part of the definite agreement made in open court for the settlement of the controversy, following which the real parties at interest, the litigants, had returned to their distant homes, relying upon the integrity and finality of the agreement made in open court and the pronouncement of the judgment as made in their presence.

On November 18, 1933, about a year following the adjournment of the term of the court at which the case was settled, the interveners and contestants (appellees here) filed their motion to have entered in the cause the form of the judgment or decree as it had been prepared or drafted by the attorneys for appellants shortly after the case had been settled, and to which form they had agreed and approved. The appellants opposed such motion, making the contention that "no agreement had ever been reached between the parties"; that the purported or attempted agreement as made was not in compliance with rule 47 for district and county courts; and that the trial court was without authority to enter the judgment as asked by appellees in their said motion.

The trial court ordered and conducted an extensive hearing and trial on appellees' motion for the entry of the judgment nunc pro tunc. At such hearing numerous witnesses, particularly many attorneys, testified and many exhibits were offered in evidence, following which the trial court granted appellees' motion and entered the judgment in the form as originally drafted by the attorneys for appellants, of which action appellants complain in this appeal.

Appellants contend that the action of the trial court in granting appellees' motion violates the provisions of rule 47 for district and county courts (142 S.W. xxi), in that the said agreement "was not made in open court, nor was it signed and filed with the papers as a part of the record." Appellants further contend that no final judgment was rendered during the term of court at which the case was heard, and hence the court was for that reason without authority to enter the judgment nunc pro tunc at a later term. Furthermore, appellants assert that the evidence is undisputed that "no agreement was concluded in open court," inasmuch as the court was not apprised of the details of the proposed agreement; that no such agreement was ever signed and filed among the papers of the case; that, while the attorneys were endeavoring to reach an agreement, it was disclosed by the attorneys for appellants that there were a large amount of delinquent taxes due against the property; and that, even if all the attorneys for appellees had agreed to the settlement as stated to the court, and the judgment as prepared by attorneys for appellants, such attorneys, after discovering the tax delinquency, "then refused to make the agreement final and to file the same among the papers for such purpose." For all such reasons appellants contend that the trial court erred in granting appellees' motion.

All of the material questions or issues of fact raised by appellants in opposition to the entry of the judgment nunc pro tunc were denied by appellees, and, with the issues thus joined, the court...