Mueller v. Heidemeyer

• Court: Court of Appeals of Texas
• Writing for the Court: Fisher
• Citation: 109 S.W. 447
• Parties: MUELLER et al. v. HEIDEMEYER et al.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 20 February 1908

109 S.W. 447 MUELLER et al.
v.
HEIDEMEYER et al.^* Court of Civil Appeals of Texas. February 20, 1908. On Rehearing, April 15, 1908.

Error from District Court, Comal County; L. W. Moore, Judge.

Frank Mueller and others against Walter Heidemeyer and others, in the nature of bill of review to set aside a judgment rendered in a cross-action. From a judgment denying the relief prayed for, plaintiffs bring error. Affirmed.

This is a suit by the plaintiffs in error in the nature of a bill of review to vacate and set aside a judgment rendered by the district court of Comal county in cause No. 1,420, styled Frank Mueller et al. v. Walter Heidemeyer.

Page 448

It is averred in plaintiff in errors' petition that the judgment rendered in the case referred to in favor of Heidemeyer against the plaintiffs in error is void, for the reason that the judgment is based upon a cross-action of defendant in error Heidemeyer, set up in his answer filed in that case, and upon which no citation was issued and served upon the plaintiffs in error. On a trial in the court below without the aid of a jury judgment was rendered against the plaintiffs in error to the effect that they were not entitled to the relief prayed for, and from this judgment this writ of error is prosecuted.

The trial court filed conclusions of fact, which are substantially as follows: Original cause, No. 1,420, was an action of trespass to try title, instituted in the district court of Comal county on July 20, 1905, by the plaintiffs in error, Frank Mueller and his wife, Lena Mueller, Allen Hoffman and his wife, Augusta Hoffman, Louis Jung and his wife, Annie Jung, Charles Strateman, Earnest, Willie, and Hugo Strateman, Frank Jung for himself and his two minor children, Stella and Edgar, and Walter and Rosa Jung, against defendant in error, Walter Heidemeyer, to recover lot 124 in block 16 of the city of New Braunfels, Comal county. On August 19, 1905, in that cause, the defendant in error Heidemeyer filed his original answer and cross-bill, all of which was contained in one instrument of writing, wherein, after pleading not guilty and a general denial, the answer contains the following averments: "And, further answering, defendant Walter Heidemeyer says: That the property in question was the property of Lisette Heidemeyer, now deceased, in fee simple. That said Lisette Heidemeyer sold and conveyed said property to Walter Heidemeyer by a general warranty deed, dated February 26, 1901, recorded in Comal County Deed Records in book Z, on pages 412 and 413. Said deed is filed among the papers in this case, and all parties will take notice thereof. The plaintiffs and other children granted and conveyed all their right, title, and interest in said property to Lisette Heidemeyer by deed dated September 29, 1887, which is recorded in Comal County Deed Records in book T, on pages 209 and 210, and which is filed in this case, and all parties will take notice thereof. That Lisette Heidemeyer had eight children. Five are plaintiffs and their heirs, and the other three are Ernst, Frederick, and Walter Heidemeyer. That in the deed by Lisette Heidemeyer to Walter Heidemeyer part of the consideration is that Walter Heidemeyer shall pay the other seven children each $200 to each of her said seven children within 12 months after her death. That defendant has offered to pay this to each. That Ernst and Fred accepted it, and that the plaintiffs refused to accept it, and defendant has paid their said portion into court in this case before the 12 months expired, and defendant asks that he be discharged from further obligation and liability, and that his title be quieted to the property in question. Defendant Walter Heidemeyer further says that Lisette Heidemeyer left a will which has been duly probated, and defendant is the independent executor duly qualified. That defendant as such executor has $122.50 out of said estate which belongs to said five plaintiffs, and defendant has paid the same into court, and asks that he be discharged from further liability therefore. That Alen Hoffman and Auguste Hoffman are indebted to said estate for $500, with 7 per cent. interest on a promissory note payable to Lisette Heidemeyer. That judgment be entered against them therefor. That one-eighth thereof belongs to each plaintiff, and the other three-eighths belongs to defendant, he having purchased the interest of Ernst and Fred Heidemeyer, and that said claim be apportioned accordingly. That there is about $1,000 in the First National Bank of New Braunfels which is the proceeds of life insurance of said Lisette Heidemeyer. Out of the same about $136 should be first paid to Ernst Heidemeyer as premiums which he advanced, and of the remainder five-eighths belong to plaintiffs and the other three-eighths to defendant, he having bought the interest of Fred and Ernst. Defendant asks that the same be apportioned. There is also some household furniture remaining which cannot be partitioned, and in which plaintiffs own five-eighths. Defendant asks that the same be sold at public sale and the proceeds divided. Of the five plaintiffs mentioned are Lena Mueller, Auguste Hoffman, Annie Jung, the heirs of Marie Strateman and the heirs of Selma Jung. Of the Strateman heirs there are five, four of whom are parties plaintiff, and Emil Strateman, who is not a party hereto, but who is entitled to one-fifth of the Strateman portion. Of the Jung heirs there are four, each of whom is entitled to one-fourth of the Jung portion. Defendant asks that all the aforesaid property and money be divided among the parties according to their respective interests; that the personal property be sold and the proceeds divided; that judgment be entered against Alen and Auguste Hoffman for said $500, and interest which be apportioned, and that said note contains a stipulation for 10 per cent. attorney's fees; that the same is being collected through an attorney, and that defendant have judgment for said 10 per cent. for his attorney; that defendant recover from plaintiffs all costs of court, and that his title be quieted, and that the entire matter between the parties be adjusted, and such further relief as is just and equitable."

It appears from the findings that one Ernst Heidemeyer also appeared and adopted the answer of Walter Heidemeyer, and asked for judgment for $136, as therein alleged.

On the 11th day of September, 1905, in the original cause referred to, the district court

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of Comal county in open session rendered the following judgment:

"Frank Mueller et al. v. Walter Heidemeyer et al. No. 1,420. Be it remembered that on the 11th day of September, A. D. 1905, this cause came on to be heard. The plaintiffs Frank Mueller and his wife, Lena Mueller, Alex Hoffman and his wife, Auguste Hoffman, Louis Jung and his wife, Annie Jung, Charles Strateman, Earnest Strateman, Willie Strateman, Hugo Strateman, and Frank Jung all appeared. And the plaintiffs Stella Jung, Edgar Jung, Walter Jung, and Rosa Jung, who are minors, appeared and brought this suit through their next friend, Frank Jung, who is their father. Walter Heidemeyer appeared, and Earnest Heidemeyer also voluntarily appeared in person in this case. The plaintiffs offered to take a voluntary nonsuit, and the defendant Walter Heidemeyer resisted and opposed said nonsuit; he having asked for affirmative relief. The court find that the defendant is entitled to proceed with the case on his prayer for affirmative relief, and the court proceeded with the trial. A jury was waived, and the questions of fact, as well as of law, were submitted to the court. On hearing the pleadings, the evidence, and argument of counsel, the court finds: That the plaintiffs have no interest in the real estate in question, viz., town lot No. 124, in block No. 16, on the corner of San Antonio and Academy streets, in the city of New Braunfels, in Comal county, Tex., and that the title of defendant should be quieted to said land as to all the plaintiffs. The court further finds that the defendant Walter Heidemeyer owes to the plaintiffs $1,122.50, of which $1,000 is part of the consideration for aforesaid property, which Walter Heidemeyer bought from his mother, Lisette Heidemeyer, by deed dated February 26, 1901, and recorded in Comal County Deed Records in book Z, on pages 412 and 413, to which reference is made. That the other $122.50 is money which came into the hands of defendant Walter Heidemeyer as executor of the will of Lisette Heidemeyer, deceased, and which remained after paying the debts as directed by the will, and that said amount is all the money which said executor has from said estate. That said $1,122.50 have been paid into the registry of the court in this case by the defendant, and is now in the hands of the clerk of the court. That one-fifth of said $1,122.50 or $224.50, belongs to Lena Mueller, one-fifth, or $224.50, to Auguste Hoffman, one-fifth, or $224.50, to Annie Jung, one-fifth, or $224.50, to Ernst, Willie, Hugo, and Emil Strateman, which is the share which would have gone to their deceased mother, Marie Strateman, each to get one-fourth thereof, or $56.12. That one-fifth of $1,122.50 or $224.50 belongs to the minors Stella,...