Pryor v. Krause

• Decision Date: 24 October 1912
• Citation: 150 S.W. 972
• Parties: PRYOR et al. v. KRAUSE et al.
• Court: Texas Court of Appeals

150 S.W. 972

PRYOR et al. v. KRAUSE et al.

Court of Civil Appeals of Texas. El Paso.

October 24, 1912.

Rehearing Denied November 20, 1912.

Appeal and Error from District Court, El Paso County; A. M. Wahthall, Judge.

Suit by Annie P. Krause and others against Thomas D. Pryor and others. There was judgment for plaintiff, and Thomas D. Pryor individually appealed, and as executor petitioned for writ of error. Plaintiff moves to dismiss and to affirm on certificate. Writ of error dismissed. Other motions overruled.

Stanton & Weeks and Jay Good, all of El Paso, for appellants. Frank G. Morris, of El Paso, for plaintiff in error. Davis & Goggin, of El Paso, for appellees and defendants in error. Lea & Nagle, of El Paso, for appellee minors.

PETICOLAS, C. J.

This was a suit by Annie P. Krause against Thomas D. Pryor and John P. Pryor, both as individuals and as executors and trustees of the last will of Annie Porter, deceased, against C. W. Fassett, receiver of the estate of Annie Porter, Frederick Pryor, Thomas Aubrey Pryor, Frances Pryor, all of whom were minors, Francis D. Pryor and John P. Pryor, Jr. It was a suit in trespass to try title for certain real estate. T. C. Lea was appointed guardian ad litem for the minors. Judgment was rendered that plaintiffs recover against Thomas D. and John P. Pryor in both capacities and against all the other defendants the title and possession of said land, provided that plaintiff should assume and pay off certain notes executed by Annie P. Krause, John P. Pryor, and Thomas D. Pryor. Thomas D. Pryor moved for a new trial in his individual capacity only. The minor defendants moved for a new trial. The motions being overruled, Thomas D. Pryor individually and the minors gave notice of appeal. Pryor individually filed an appeal bond, which he made payable to Annie P. Krause, to John P. Pryor individually and in his executive capacity, to Thomas D. Pryor in his representative capacity, and to all the other defendants. Assignments of error were filed by Thomas D. Pryor individually. Afterwards a petition for writ of error was filed by Thomas D. Pryor as executor, etc., and not in his individual capacity. The petition for writ of error, the writ of error bond (which is payable to Annie P. Krause only), citation in error (which was served only on Annie P. Krause), the return, and the assignments by Pryor, executor, are contained in the only transcript which we have before us. The transcript itself is in rather an extraordinary condition. It contains what purport to be all proceedings in the case, including the appeal, and also contains the proceedings on writ of error. The certificate is substantially as follows: "* * * Do hereby certify that the foregoing pages from 296 to 298, inclusive, is a true and correct copy of the proceedings in the foregoing entitled cause No. 8,321 on the docket of the district court, and wherein Annie P. Krause is plaintiff and Thomas D. Pryor et al. are defendants, together with certified bill of costs thereto attached. And I further certify that the foregoing pages contain a true and correct transcript of the proceedings upon application for writ of error made by Thomas D. Pryor as executor and trustee of the last will and testament of the estate of Annie Porter, deceased, wherein he sues out a writ of error to the appellate court in the capacity aforesaid." The transcript has indorsed upon it the following: "Applied for by Stanton & Weeks on the 22d day of March, 1912, and delivered to Stanton & Weeks on the 19th day of June, 1912"—signed by the clerk. It also has another indorsement, in the same handwriting as the one just quoted, as follows: "Applied for by F. G. Morris on the 27th day of May, 1912." This is written above and to one side of the signature of the clerk; and whether it is intended to be a part of the other certificate or not we are at a loss to determine; and it is equally difficult to determine whether the certificate of the clerk quoted above with reference to the contents of the transcript means that it is the transcript on writ of error or the transcript on appeal.

Counsel for appellee and defendant in error Annie P. Krause have filed a motion to dismiss the writ of error herein on the ground that this court has no jurisdiction, since all the parties to the suit are not before it, and for the reason that plaintiff in error cannot divide himself up in two capacities and appeal in his personal capacity and sue out a writ of error in his representative capacity. They have filed also a motion to dismiss the appeal for the reason that Thomas D. Pryor in his representative capacity does not join in the appeal, and for the reason that the indorsement on said transcript is misleading and contradictory. They filed also a motion to affirm on certificate on the ground that the transcript filed is the writ of error transcript, and that Pryor, appellant, has failed to file any transcript within the 90 days allowed by law. The appeal bond of Thomas D. Pryor was filed March 22, 1912. The petition for writ of error was filed May 27, 1912.

We are of the opinion that it is necessary first to determine the motions to dismiss before coming to the motion to affirm on certificate, because, if this court has no jurisdiction, it has none to affirm on certificate, and we are of the...