Patten v. Cox

• Decision Date: 19 December 1894
• Citation: 29 S.W. 182
• Parties: PATTEN et al. v. COX et al.
• Court: Texas Court of Appeals

29 S.W. 182

PATTEN et al. v. COX et al.

Court of Civil Appeals of Texas.

December 19, 1894.

Error from district court, Hill county; J. M. Hall, Judge.

Action by George M. Patten, executor, against John P. Cox and others. M. D. Herring and another made themselves parties defendant. There was a judgment for defendants, and against plaintiff and others, for costs, and the latter bring error. Reversed.

This was an action in the district court of Hill county, by George M. Patten, executor of Martha A. Patten, deceased, against John P. Cox, sheriff of Hill county, and his official bondsmen, John D. Warren, Henry M. Long, and D. M. Mathews, for $4,000 damages for the conversion of property by John P. Cox, sheriff, belonging to the estate of Martha A. Patten, deceased. Plaintiff alleged that he was in the possession of said property as executor; and that it belonged to the estate of his testatrix, in his hands, in due course of administration; and that said Cox, as sheriff, by virtue of an execution in his hands against George W. Patten and Nathan Patten, in favor of Herring & Kelley, levied on said property belonging to his testatrix, and sold the same. Plaintiff, executor, sued for the value of said property, and filed with his petition a certified copy of the will of Martha A. Patten, as an exhibit, by which he was made executor of her estate. Plaintiff also filed with his petition a certified copy of the execution and return under which Sheriff Cox sold the property, as an exhibit. Defendant Cox and his bondsmen answered by general denial, and, specially, that he sold said property by virtue of the execution filed with plaintiff's petition, and that said property, at the time of its seizure, belonged to defendants in execution; and further answered by saying that he seized the property and sold the same at the request of Herring & Kelley, plaintiffs in execution against Nathan and George W. Patten, and asked that Herring & Kelley be made parties to defend the suit. Herring & Kelley, a firm composed of M. D. Herring and D. A. Kelley, made themselves parties defendant, and, answering, pleaded: (1) That "plaintiff's petition is insufficient in law, for the reason that the plaintiff appears to bring this suit as an independent executor, when, by the terms of the pretended will attached as an exhibit to his petition, he is exempted from filing an inventory, which the law does not contemplate nor permit; wherefore these defendants say that the plaintiff herein has no legal capacity to sue as executor of the estate of Martha A. Patten." And they "further say that they are informed and believe, and, so believing, they allege the fact to be, that the plaintiff herein has never filed any bond or inventory as executor of the estate of Martha A. Patten, deceased, as the paper attached to plaintiff's petition, purporting to be the will of Martha A. Patten, deceased, does not require the plaintiff to file an inventory of the estate in order that he may become an independent executor, according to the provisions of the statute, but designs to exempt him from so doing, these defendants say that, in law, the plaintiff is not the executor of said estate, and has no legal capacity to sue as such." The foregoing plea of Herring & Kelley was subscribed and sworn to by D. A. Kelley. They further answered by general denial and not guilty, and answered specially that the property levied on by Sheriff Cox was the property of George W. and Nathan Patten, and subject to execution, and that, if Martha A. Patten ever held said property, she held it in trust for the use and benefit of George W. and Nathan Patten, and that it was their property. Plaintiff, George M. Patten, executor, replied to the answer of Herring & Kelley by exceptions to so much of said answer as seeks to call in question the right of this plaintiff to bring this action, because such plea seeks to make a collateral attack upon a judgment of the county court of Hill county, rendered in a cause of which said court had jurisdiction; and replied to other points in said answer not necessary to the matters now before us on writ of error. The cause was heard on the exception of Herring & Kelley to the legal capacity of the plaintiff to sue as executor of the estate of Martha A. Patten, deceased, and on the special plea of Herring & Kelley; and the court entered judgment that the plaintiff had no legal capacity to sue as such executor, and in favor of all the defendants, and adjudged costs against George M. Patten, executor, and M. M. Patten and George A. O'Brien. A motion for new trial was made, and by the court overruled, and the cause is brought to this court by writ of error.

Felix H. Robertson, for plaintiffs in error. McKinnon & Carlton, for defendants in error.

FINLEY, J. (after stating the facts).

No statement of facts or bill of exceptions is contained in the record, and the sole question for our consideration is the correctness of the judgment of the court, in the light of the record as it exists, adjudging that the plaintiff had not legal capacity to sue.

The question is sought to be raised by the first assignment of error, complaining that the court did not sustain the exceptions of the plaintiff, George M. Patten, to so much of the answer of defendants Herring & Kelley as sought to bring in question the authority of plaintiff to maintain this action. This assignment cannot be considered, because it does not appear from the record that the court passed upon the exception. It has been often announced that, where the record fails to show that the trial court acted upon exceptions, the appellate court will treat them as waived, and refuse to...