Milner v. Schaefer, 11814.

• Decision Date: 28 April 1948
• Docket Number: No. 11814.,11814.
• Parties: MILNER v. SCHAEFER et al.
• Court: Texas Court of Appeals

211 S.W.2d 600

MILNER v. SCHAEFER et al.

No. 11814.

Court of Civil Appeals of Texas. San Antonio.

April 28, 1948.

Rehearing Denied May 26, 1948.

Appeal from District Court, Fifty-Seventh District, Bexar County; C. K. Quin, Judge.

Suit by Sam H. Schaefer against Aubrey Milner and others to enforce a settlement agreement contained in a foreign judgment. From an adverse judgment, Aubrey Milner appeals.

Affirmed.

John C. Hoyo and L. M. Bickett, both of San Antonio, for appellant.

Loughridge & Edwards and W. Pat Camp, all of San Antonio, for appellees.

NORVELL, Justice.

About the year 1931, Aubrey Milner, Sam H. Schaefer and Waldo M. Lewis entered into a co-partnership for the purpose of buying and selling real estate under the name of "The Milner Company."

The partners acquired property in the States of Texas, Colorado, Ohio and Kansas and became possessed of lands, mortgage notes and contracts of considerable value.

In 1942 Milner became dissatisfied with the partnership arrangement, withdrew from the firm and filed a suit for an accounting and distribution of the partnership assets in the District Court in and for the City and County of Denver, Second Judicial District of the State of Colorado.

After numerous attempts to dispose of this litigation, and while the case was in the process of trial, the parties and their attorneys prepared a written instrument which was designated as "Memorandum, Re Contemplated Milner-Schaefer-Lewis Settlement." For convenience, we refer to this instrument as the settlement memorandum. Under the heading "Assets other than Cash," it was provided that "(1) All Texas property, including all interests in Lady of the Lake and Milner-Lewis holdings, go to Schaefer and Lewis." Under the heading "Cash on Hand and Hereafter Received," the memorandum provided that "All cash in the Texas Receivership goes to Schaefer and Lewis." Under the heading "Receivership Expenses" it was provided that, "(1) Expenses incurred by the Texas and Kansas receivers now unpaid or hereafter incurred are to be paid by Schaefer and Lewis."

This settlement memorandum was quite extensive and purported to settle generally the affairs of the partnership. By its terms, Milner was to receive substantial portions of the partnership properties, principally those located in the State of Colorado, while Schaefer and Lewis received the properties located in the State of Texas.

The settlement memorandum also provided that:

"K. All deeds, abstracts of title and records pertaining to any of the properties herein involved and in the possession or subject to the control or direction of any of the three parties hereto, are to be promptly delivered to the party, or parties, receiving the property in question, pursuant to the terms of this agreement.

"L. Upon the request of any of the three parties to this agreement, said agreement shall be incorporated in appropriate court decree, or decrees.

"M. The parties shall join in all requests, petitions and stipulations necessary to enable the prompt closing of the existing receiverships upon the carrying out of this agreement."

On the 21st day of January, 1944, Milner, Schaefer and Lewis executed a short agreement whereby they adopted the settlement memorandum as a final contract of settlement. This adopting agreement reads as follows:

"The undersigned hereby agree to enter into a contract in settlement of all controversies among themselves, embodying the terms as set forth in the Memorandum re Contemplated Milner-Schaefer-Lewis Settlement, dated January 21, 1944, attached hereto and by such reference incorporated herein.

"The undersigned further agree that such Agreement shall, at the request of any party, be incorporated in an appropriate decree by any of the courts wherein the said properties and business of the parties are now in receivership.

"In witness whereof, the parties hereto have hereunto subscribed their names at Denver, Colorado, this 21st day of January, 1944."

The agreement was signed by A. Milner, W. M. Lewis and Sam H. Schaefer.

The parties reported to the court that they had settled the pending lawsuit and at their request the following decree was rendered:

"The within stipulation and agreement of all the parties hereto being now presented to the Court for approval, it is ordered by the Court that the terms of same being mutually agreeable to all the parties thereto who are also all the litigants named and involved in the case hereby affected by this agreement, are ordered approved and directed to be carried out as set forth as a complete and final settlement of said causes of action in issue in said case. Further, the present case is ordered continued to February 21, 1944, for further disposition and orders of the Court, the Court retaining jurisdiction of the same.

                    "(Sgd.) Charles C. Sackmann, Judge"
                

Thereafter the Colorado court attempted to enforce its decree by orders in personam directed against Milner, but these came to naught as Milner left the jurisdiction of the Colorado court and came to Texas.

The Texas receivership proceedings mentioned in the memorandum of agreement above mentioned were instituted in the District Court of Bexar County, Texas, by Schaefer in 1942. This appeal is from a judgment rendered in said cause. The parties to the judgment are the original plaintiff, Schaefer, Annie E. Lewis, Independent Executrix of the Estate of Waldo M. Lewis, who died pending this protracted litigation, and Aubrey Milner, plaintiff in the Colorado suit and a defendant in the Texas suit.

The effect of the decree of the Texas court herein appealed from was to enforce the agreement contained in the Colorado judgment, whereby Milner had agreed that the Texas property should go to Schaefer and Lewis.

Trial below was to the court without a jury. No findings of fact or conclusions of law were requested.

Appellant here presents four points which are predicated upon the trial court's action in overruling appellant's exceptions to appellees' pleadings.

The contentions presented by appellant's exceptions and carried forward by his points in this Court are stated in the brief as follows:

"(1) That the purported judgment of January 21, 1944, by the District Court of Colorado, as shown by its face, was not in any respect a final judgment but a mere interlocutory order wherein the court continued the case `for further disposition and orders of the court, the court retained jurisdiction of the same.'

"(2) That the alleged agreement of January 21, 1944, showed upon its face that it was a mere preliminary or tentative agreement to enter into a contract of settlement thereafter to be executed, and that there was no allegation that any final and complete contract, as contemplated by the preliminary or tentative agreement, was ever entered into between the parties.

"(3) That the alleged agreement of January 21, 1944, and the purported judgment of the same date were so vague, indefinite, and uncertain as to render their provisions unenforceable, because they do not describe with legal certainty any property located in the State of Texas.

"(4) That the Colorado court was wholly without jurisdiction to render a judgment adjudicating title to land in Texas and divesting title thereto out of Aubrey Milner."

The judgment of the Colorado court rendered on January 21, 1944, is composed of three parts, which must be construed together, that is, the settlement memorandum, the adopting agreement and the order of the judge approving and confirming the same as a decree of his court. It appears that the Colorado court considered the order of January 21, 1944, as a final judgment and referred to it as such in a subsequent order seeking to enforce the decree.

However, the law of Colorado was not pleaded, and the provisions of Rule 184a, Texas Rules of Civil Procedure, were not invoked, consequently we presume that the law of that State is the same as that of Texas. The parties agree that a judgment must be "final" in order that it be entitled to full faith and credit under Article 4, Section 1, of the Constitution of the United States.

The judgment here involved is obviously an agreed judgment, and, further, it is one in the nature of a partition decree. The Texas authorities relating to this type of judgment support a holding that the judgment is final and thus entitled to full faith and credit. We are in accord with the following statement contained in appellees' brief:

"The Colorado suit was a simple partition suit brought by appellant against appellees for the purpose of dividing certain real and personal property belonging to a partnership composed of appellant and appellees and situated in the State of Texas, Colorado, Kansas and elsewhere. The ultimate relief sought the dividing of the property among the three parties. The agreed judgment of January 21, 1944, including the stipulation of the parties attached thereto and made a part of the judgment itself disposes of all of the parties, and since it divides the specific property among the three parties to the suit, it disposes of all of the issues involved in the suit, * * *. Since the judgment specifically provides that each party is to receive certain property therein described, there remained nothing to be done but to carry out the judgment by the execution of the instruments which appellant and appellees thereby agreed to sign and deliver. The merits of the case had been finally disposed of. The judgment does not provide for any future action for revision of the judgment or otherwise, affecting the merits, but all of the rights of the parties having been settled by the judgment, the only further proceedings required were those necessary to carry the judgment into full effect."

In Ware v. Jones, Tex.Com.App., 250 S.W. 663, 665, the Court said:

"A `final judgment' is one which awards the judicial consequences which the law attaches to the facts and determines the controversies between the...