Pfeffer v. Pfeffer, 12726

• Decision Date: 27 May 1954
• Docket Number: No. 12726,12726
• Citation: 269 S.W.2d 436
• Parties: PFEFFER et al. v. PFEFFER et al.
• Court: Texas Court of Appeals

Page 436

269 S.W.2d 436

PFEFFER et al. v. PFEFFER et al.

No. 12726.

Court of Civil Appeals of Texas, Galveston.

May 27, 1954.

Rehearing Denied June 17, 1954.

W. H. Betts, Hempstead, for appellants.

W. D. Bryan, Sealy, W. I. Hill, Bellville, for appellees.

GRAVES, Justice.

This appeal by Seldon Pfeffer and Hally Pfeffer, as appellants, against Elmer J. Pfeffer, Gus R. Pfeffer, Daniel Pfeffer, Elda Pfeffer Bishop and her husband, Hilma Pfeffer Procter and her husband, and Ora Dell Pfeffer Boulware and her husband, as appellees, is from a judgment of the District Court of Austin County, Hon. J. R. Fuchs, Judge, presiding without a jury, approving the sale, by its receiver, it had appointed for that purpose, of two tracts of land belonging to the estate of Albert J. and Minnie Pfeffer, both deceased, one containing 82 acres to J. D. Kamas for $2,625.00, the other containing 138.30 acres to Storey J. Slone for $22,210.98.

In support of its judgment the trial court filed these findings-of-fact and conclusions-of-law:

'Findings of Fact

'1. That the defendants were duly cited to appear in this cause;

'2. That the defendants were repeatedly given the opportunity by the Court to present evidence of any equitable reasons, if any, they had to show why they had not presented their defenses, if any, at the trial of the cause;

'3. That there are no facts or circumstances in the record showing any reason or excuse on the part of the defendants for failure to present their alleged defenses at the time of trial; and

'4. That there is no evidence that the defendants were free from negligence in failure to show their alleged defense.

'Conclusions of Law

'The Court concludes that the defendants are not entitled to a bill of review.'

The explanation of the trial court's judgment and of the relative positions of the parties to this appeal therefrom is a relatively simple and undisputed situation, which may be thus summarized: The parties to the appeal were the relatives and sole owners of the two tracts of land here involved that belonged to the estate of Albert J. and Minnie Pfeffer, both of whom had died intestate and leaving as their sole heirs such named parties to this appeal. On January 10, 1951, the appellees, as plaintiffs, filed this suit against the appellants, as defendants, setting up such joint ownership, particularizing the interest so owned by the several parties to the suit, alleging the death of Albert J. and Minnie Pfeffer as so intestate, and further, in substance, requesting the court to appoint commissioners to partition the same; thereafter such commissioners were appointed, who reported to the court that the lands were incapable of partition in kind in an equitable manner, and recommended the appointment of a receiver to sell the two tracts, so that the proceeds thereof might be distributed among the several owners thereof; as indicated supra, the court did appoint such recommended receiver, in the person of Alvin Meissner, who, under the further directions of the court, made such sales as so directed, which the trial court approved, as so above recited.

In their appeal herein, the appellants protest against such judgment of the trial court, through some 7 points of alleged error, none of which, it is determined, can be sustained, for the simply stated reason, in the main, that appellants, as the foundation thereof, do not stick to the facts as found by the trial court; on the contrary, a careful examination of the record shows that the quoted findings of fact by the trial court, supra, were each and all amply supported by the evidence. For...