Pfeffer v. Meissner

• Decision Date: 23 November 1955
• Docket Number: No. 12891,12891
• Citation: 286 S.W.2d 241
• Parties: Elna PFEFFER et al., Appellants, v. Alvin MEISSNER et al., Appellees.
• Court: Texas Court of Appeals

Page 241

286 S.W.2d 241

Elna PFEFFER et al., Appellants, v. Alvin MEISSNER et al., Appellees.

No. 12891.

Court of Civil Appeals of Texas, Galveston.

Nov. 23, 1955.

Original Motion for Rehearing Denied Jan. 5, 1956.

Second Motion for Rehearing Refused Jan. 26, 1956.

W. H. Betts, Hempstead, for appellants.

W. D. Bryan, Sealy, and W. I. Hill, Bellville, for all appellees except Storey J. Sloane.

Townes & Townes, Edgard E. Townes, Jr., Houston, for appellee Storey J. Sloane.

GANNON, Justice.

The parties will be referred to as in the trial court.

This is an appeal by Halley and Seldon Pfeffer, as well as by Elna and Cynthia Pfeffer, who composed all parties, plaintiff in the trial court, from an interlocutory order denying injunctive relief pending final disposition of a suit seeking to have declared void a certain order of June 19, 1951, entered in Cause No. 8015, a partition suit styled Elmer J. Pfeffer et al. v. Halley Pfeffer et al. in the District Court of Austin County, and to enjoin any action being had and taken by any party under said order and subsequent orders based thereon. Defendants in the trial court were the six plaintiffs in No. 8015 as well as Messrs. Alvin Meissner, T. A. Maddox, J. D. Kamas and Storey J. Sloane. The occasion for the presence in the litigation of the four parties last named will appear later. We have grouped Halley and Seldon Pfeffer together and Elna and Cynthia Pfeffer together because, as will hereinafter appear, Halley and Seldon Pfeffer are differently related to the proceedings and end results in Cause No. 8015 than are the plaintiffs, Elna and Cynthia Pfeffer. Halley and Seldon Pfeffer were appellants in Cause No. 12,726 in this Court, in which appeal the very orders now sought to be set aside were attacked. See our opinion in that appeal reported in Pfeffer v. Pfeffer, Tex.Civ.App., 269 S.W.2d 436, 438, writ refused, n. r. e., wherein we held Seldon and Halley Pfeffer were estopped to complain of the disputed orders and wherein, referring to the very orders presently under attack, we said, 'the court did not err in refusing to set aside its proceedings so taken about three years before, as so belatedly contended for by the appellants upon this trial.'

We are met at the threshold with a motion to dismiss the entire appeal as frivolours, no distinction being made in the motion between the appeal of Halley and Seldon Pfeffer and that of Elna and Cynthia Pfeffer. An examination of the motion reveals actually that it is based upon res adjudicata, which in turn is based upon the results of the prior appeal of Halley and Seldon Pfeffer. Obviously nothing ruled in the prior appeal is res adjudicata as to Cynthia and Elna Pfeffer, who were not parties to it. We are cited to Federal Court precedent for our right to dismiss the appeal as frivolous. See Robertson v. Wilkinson, 5 Cir., 10 F.2d 311. We doubt our authority to sustain the motion on the grounds indicated, especially as against Cynthia and Elna Pfeffer. See Rule 451, T.R.C.P., making it mandatory upon us to decide all issues both of law and fact which may be presented to us by proper assignments of error, which we now proceed to do. The motion to dismiss the appeal is overruled.

It is impossible to understand even the general nature of the issues without a rather full statement of the facts, which follows:

Facts.

1. On January 10, 1951, there was filed in the District Court of Austin County a partition suit, seeking partition of two tracts of land, property in their lifetimes of Minnie and Albert Pfeffer. The plaintiffs Elmer J. Pfeffer et al., being six in number, were the alleged owners of a 40% undivided interest in the subject lands. The defendants, Elna Pfeffer et al., were alleged to be the owners of a 60% undivided interest. It appears that the parties to the partition suit were all of the heirs at law of Albert and Minnie Pfeffer, Deceased. No administration on the estate of either was ever had.

2. On the 20th day of February, 1951, the cause came regularly on for hearing. All of the plaintiffs appeared and announced ready for trial. Though all of the defendants, including Halley, Seldon, Cynthia and Elna Pfeffer, were duly and legally cited to appear and answer, none appeared save Malinda Pfeffer, a person of unsound mind, who answered through her guardian ad litem. All remaining defendants wholly made default. No jury having been demanded, the matters of fact as well as of law were submitted to the court, who, after making findings in line with the allegations of the petition, decreed that the subject lands be partitioned in kind and distributed between plaintiffs and defendants. The defendants Halley and Seldon Pfeffer and Cynthia and Elna Pfeffer were decreed the owners of a 1/10th interest each, or a 40% interest collectively. Commissioners to make partition in kind were appointed with directions to file their written report under oath.

3. On May 2, 1951, at the same term of court, but more than thirty days after February 20, 1951, the commissioners, contrary to the finding in the order of February 20, 1951, reported under oath that the lands were incapable of partition in kind among the parties in an equitable manner and recommended that a receiver be appointed to sell the lands and that the proceeds be distributed among the owners.

4. No further action in the partition proceeding was had until the succeeding term when, on the 19th day of June, 1951, and a date more than thirty days later than both the order of February 20, 1951, and the commissioners' report filed May 2, 1951, the commissioners' report came on for consideration. At this time all defendants, save Malinda Pfeffer, remained in default and there appeared before the court only the plaintiffs and the guardian ad litem for the incompetent defendant, Malinda Pfeffer. At this hearing the court found contrary to its decree of February 20, 1951, and in line with the report of the commissioners that the subject lands were 'incapable of partition in kind in a fair and equitable manner.' The court therefore appointed Alvin Meissner receiver to make private sale of the subject lands with directions to report such sale to the court for confirmation. We pause here to note it is the contention of plaintiffs, who were four of the defendants in the partition suit, that this order of June 19, 1951, and all subsequent proceedings are void on the theory of coram non judice. In alleging lack of jurisdiction the petition for injunctive relief does not distinguish between jurisdiction of the subject matter and jurisdiction of the person but we think it is clear plaintiffs' contentions are based entirely upon a claim of lack of jurisdiction of their persons, so as to bind them by the order of June 19, 1951, and subsequent proceedings based thereon. For this reason plaintiffs contend all such orders are void and that they should be vacated.

5. So far as shown by the record, the plaintiffs, Elna and Cynthia Pfeffer, have made no appearance in or taken any notice of the proceedings in No. 8015 prior to the filing of this suit for injunction. But this is not true of the appellants, Halley and Seldon Pfeffer, who addressed to the receiver an unsuccessful low bid for the subject lands on December 30, 1953. This was at a time when they had previously filed, on September 18, 1951, in cause No. 8015, a plea to the jurisdiction which then remained undisposed of. As we read this particular plea, it is based on the theory that only the probate court had jurisdiction to order a partition since four years had not then elapsed after the deaths of Albert and Minnie Pfeffer and each and both died leaving debts which had not been paid. The plea to the jurisdiction, which is styled a 'bill of review,' sets out that application is being made to the probate court for letters of administration on the estates of Albert and Minnie Pfeffer. This plea to the jurisdiction styled 'bill of review,' but which impresses us as a motion to vacate, takes notice of all proceedings up to the date of its filing, including the appointment of defendant, Alvin Meissner, as receiver to sell the land. The sweep of the prayer of the plea to the jurisdiction, or bill of review, is apparent from the following language praying that 'this Bill of Review be granted and that upon a hearing upon the merits hereof, said Cause No. 8015 so initiated by petitioners on January 10, 1951, and all proceedings relative to the partition therein sought, be set aside and said Cause No. 8015 be dismissed and that such orders as may have heretofore been made and entered by this Honorable Court relating to the same be set aside and held for nought.' A reading of this pleading leaves one with the impression that the sole basis of the claim of lack of jurisdiction is the alleged exclusive jurisdiction of the probate court.

6. Before hearing on the bill of review, or plea to the jurisdiction, final judgment following an appeal to the District Court was entered denying application for letters of administration on the estates of Albert and Minnie Pfeffer. Apparently the receiver had delayed all efforts to make a sale of the subject lands pending the disposition of the application for letters of administration.

7. On January 8, 1954, Alvin Meissner, receiver, reported sale of the subject lands consisting of two tracts to defendants, J. D. Kamas and Storey J. Sloane, respectively.

8. Later and on Jnauary 21, 1954, Halley and Seldon Pfeffer filed in Cause No. 8015 a pleading denominated 'reply to report of Alvin Meissner, Receiver.' By this pleading Halley and Seldon Pfeffer continued the prayer of their prior plea to the jurisdiction and bill of review and additionally insisted that the subject lands were susceptible of partition in kind. This position was coupled with allegations of good faith permanent and valuable improvements on parts of the land, and with alternative allegations of just claims against the...