Pure Oil Co. v. Reece

• Citation: 78 S.W.2d 932
• Decision Date: 23 January 1935
• Docket Number: No. 1806-6285.,1806-6285.
• Parties: PURE OIL CO. et al. v. REECE et al.
• Court: Supreme Court of Texas

78 S.W.2d 932

PURE OIL CO. et al. v. REECE et al.

No. 1806-6285.

Commission of Appeals of Texas, Section A.

January 23, 1935.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Bill of review filed by Mrs. Rosa Reece, joined by her husband and others, against the Pure Oil Company and others. To review a judgment of the Court of Civil Appeals [48 S.W.(2d) 440], reversing a judgment in favor of defendants, the Pure Oil Company and the State Bank & Trust Company bring error.

Reversed and judgments of the district and county courts affirmed.

Clyde A. Sweeton, David T. Searls, and Vinson, Elkins, Sweeton & Weems, all of Houston, and L. L. James, of Tyler, for plaintiffs in error.

Butler, Price & Maynor, of Tyler, for defendants in error.

CRITZ, Commissioner.

This suit was originally filed in the county court of Van Zandt county, Tex., by Mrs. Rosa Reece, formerly Rosa Kidd, and husband, J. T. Reece, and Gordon Kidd, Virgil Kidd, and Clyde Kidd, minors, who sue by their next friend, Mrs. Latvada Kidd, against Pure Oil Company and State Bank & Trust Company of Houston, Tex., both corporations, and also against J. H. Chambers and a number of other individuals. The purpose of the suit was to set aside and annul a certain order of the county court of Van Zandt county, Tex., appointing Mrs. L. O. Kidd guardian of the persons and estates of Rosa Kidd, Gordon Kidd, Virgil and Clyde Kidd, all minors under the age of fourteen years. Also such petition sought to set aside and annul all subsequent orders and proceedings had in such guardianship, including certain orders pertaining to the sale by the guardian of the minors' interest in the land here involved. The petition further sought to set aside and annul a certain guardianship deed made by the guardian appointed under the above-mentioned order to one J. H. Chambers. The defendants in the two lower courts were J. H. Chambers and those claiming title under him by virtue of the above-mentioned guardianship deed.

The case was finally tried in the county court where judgment was rendered for the defendants Pure Oil Company et al. The case was appealed to the district court of Van Zandt county, Tex., where on trial de novo the same judgment was rendered. On appeal by Mrs. Reece et al. to the Court of Civil Appeals, that court reversed the judgments of the two trial courts and rendered judgment for Mrs. Reece et al. 48 S.W.(2d) 440. Pure Oil Company and State Bank & Trust Company have prosecuted joint writ of error to this court.

The record before us contains, among others, the following instruments and orders:

1. Application of Mrs. L. O. Kidd to county court of Van Zandt county, Tex., to be appointed guardian of the persons and estates of her four minor children, viz., Rosa, Gordon, Virgil, and Clyde Kidd. The application alleges that the father is dead, and that all of said children were under the age of fourteen years. The file mark on this application bears date, June 20, 1921.

2. Order of the county court purporting to appoint Mrs. Kidd guardian of the persons and estates of the above-named minors, all under the age of fourteen years. This order recites: "On this the 20th day of June, A. D. 1921, came on to be heard the application of Mrs. L. O. Kidd for letters of guardianship of the persons and estate of Rosa, Gordon, Virgil and Clyde Kidd, minors under the age of 14 years." Such order also recites: "And it appearing to the court that due notice of said application has been given," etc. From the above, it appears that, according to the file mark on the application and the purported date of the order of appointment, the order of appointment was entered on the same day the application therefor was filed. On the other hand, it also appears on the face of the judgment or order of appointment that due notice had been given on the application.

3. General guardianship bond in the sum of $500 executed by Mrs. Kidd as principal, and J. T. Howell and F. L. Howell as sureties. This bond was duly approved by the court on July 6, 1921.

4. Guardian's oath in due form filed July 6, 1921.

5. Inventory and appraisement showing property of the value of $200 filed July 6, 1921.

6. Application of Mrs. Kidd as guardian to sell the minors' interest in the land here involved filed on July 6, 1921.

7. Order of the court authorizing the guardian to sell the land here involved. This order was made on July 11, 1921.

8. Report of sale by the guardian. This report shows sale by the guardian of the minors' interest in this land to J. H. Chambers. This report was filed July 29, 1921.

9. Order of the court confirming the above sale and authorizing the guardian to make deed. This order was entered on August 5, 1921.

10. Deed by the guardian to J. H. Chambers.

By their brief, counsel for Rosa Reece et al. contend that the order appointing Mrs. Kidd as guardian of the four minors named therein was and is absolutely void because the statutory notice provided by article 4114, R. C. S., was not had on the application therefor. It is then contended that since the order appointing the guardian was void, all subsequent proceedings and orders, including the guardianship deed to Chambers, were and are absolutely void.

Under article 4328, supra, "any person interested may, by a bill of review, filed in the court in which the proceedings were had, have any decision, order or judgment rendered by such court, or by the judge thereof, revised and corrected on showing error therein." Also the "bill of review" provided by the above statute "need not conform to the rules, and is not limited to the restrictions, of the equitable practice as applicable to that remedy." Jones v. Parker, 67 Tex. 76, 3 S. W. 222, 224. In spite of the terms of this statute, and the fact a "bill of review" thereunder is not limited by the restrictions of equity rules, still for a direct attack to be made thereunder all persons who might be in any way affected by its result must be before the court. Hannon v. Henson (Tex. Com. App.) 15 S.W.(2d) 579. In fact, this rule applies generally where a judgment is attacked. 25 Tex. Jur., page 650 and notes.

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