Oster v. Heuman, 9421.

• Citation: 24 S.W.2d 794
• Decision Date: 23 January 1930
• Docket Number: No. 9421.,9421.
• Parties: OSTER v. HEUMAN et al.
• Court: Court of Appeals of Texas

24 S.W.2d 794

OSTER v. HEUMAN et al.

No. 9421.

Court of Civil Appeals of Texas. Galveston.

January 23, 1930.

Appeal from County Court, Galveston County; E. B. Holman, Judge.

Action by H. M. Oster against Mrs. F. C. Heuman and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Harold M. Oster, of Galveston, pro se.

Stewart & Damiani and D. J. Wilson, all of Galveston, for appellees.

GRAVES, J.

Appellees' motion to strike appellant's brief and to dismiss his appeal on the grounds, first, that he had failed to file a copy thereof in the trial court, and, second, had failed either to furnish appellees or their counsel with a copy of such brief, or to give them notice that it had been filed in this court, all alleged to be required by R. S. art. 2283, which motion upon submission day was taken for consideration with the cause itself, has been overruled because not filed within 30 days after the transcript was filed in this court. Rule 8 for the Courts of Civil Appeals. The record shows that the transcript upon the appeal was filed in this court on September 6, 1929, whereas the motion to strike and to dismiss, which had sole relation, under R. S. art. 2283, to informalities in the manner of bringing the case into this court, was not filed until January 16, 1930.

Considering the cause upon its merits, we find this statement taken from appellant's brief to correctly reflect the nature and result of the suit below:

"This is a suit by H. M. Oster against Mrs. F. C. Heuman, Mrs. C. J. Neal, Fred C. Heuman and Chas. J. Neal to recover for legal services rendered defendants Mrs. F. C. Heuman and Mrs. C. J. Neal, for the benefit of their separate estate and at their instance and request. The first amended original petition charges as follows:

"That heretofore, to-wit, on the 23rd day of February, 1928, defendants Mrs. F. C. Heuman and Mrs. C. J. Neal employed plaintiff herein to prosecute a claim which they had against the estate of Edward Van Buren, Jr., deceased, for which defendants obligated themselves and agreed to pay to said plaintiff the sum of Two Hundred Fifty Dollars ($250.00), as evidenced by a contract signed by said defendants, a copy of which is hereto attached, made a part hereof and marked `Exhibit A'; that in his business as an attorney at law, and at the request of said defendants, and for the benefit of the separate estate of defendants Mrs. Heuman and Mrs. Neal, plaintiff held divers consultations with the administrator of the said estate, Victor Dantin, and began a strenuous endeavor to clear the matter up as quickly and expeditiously as possible by drawing up certain instruments which would bring the estate to a hurried close; that about six weeks after his employment, plaintiff was given notice that his services were no longer required, and although plaintiff had performed his services conscientiously and well, and was ready, willing and able to further continue to do so, defendants have refused and still refuse to pay his fee for said services, or any part thereof, although the said fee for services was reasonable and proper, to plaintiff's damage in the sum of Two Hundred Fifty Dollars ($250.00).

"`Exhibit A.

"`State of Texas, County of Galveston

"`Know all men by these presents that we, Mrs. F. C. Heuman and Mrs. C. J. Neal of Galveston, Texas, have employed Harold M. Oster of said County and State, as my attorney to represent me and prosecute to settlement or judgment a certain claim I have and hold against the estate of Edward Van Buren, Jr., for beneficiaries as heirs. I hereby fully authorize and empower my said attorney to bring suit on said claim, if necessary, and prosecute the same to final judgment, and to compromise and settle said claim with or without suit, in any way or manner that he may deem best or advisable, and to sign our names to any and all papers that may be necessary to be executed for the purpose of settling and compromising said claim. For and in consideration of the services rendered for me by my said attorney, H. M. Oster, I hereby agree and obligate ourselves to give and allow him, as his compensation herein, $250.00. And I hereby ratify and confirm all such lawful acts that my said attorney may do or cause to be done in the premises by virtue hereof.

                                     "`Mrs. F. C. Heuman
                                     "`Mrs. C. J. Neal.'
                

"`The State of Texas County of Galveston

"`Before me, the undersigned authority, on this day personally appeared Mrs. F. C. Heuman and Mrs. C. J. Neal, known to me to be the persons whose names are subscribed to...