Saner-Ragley Lumber Co. v. Spivey
Decision Date | 12 March 1921 |
Docket Number | (No. 634.)<SMALL><SUP>*</SUP></SMALL> |
Citation | 230 S.W. 878 |
Parties | SANER-RAGLEY LUMBER CO. et al. v. SPIVEY et al. |
Court | Texas Court of Appeals |
Action by J. H. Spivey against the Saner-Ragley Lumber Company and another, Mrs. Fannie Spivey and others being substituted as plaintiffs on the death of J. H. Spivey. Judgment for plaintiffs, and defendants attempted to bring error, after death of one of the substituted plaintiffs. Dismissed.
Dean & Humphrey, of Huntsville, P. R. Rowe, of Livingston, and Kimbrough, Underwood & Jackson, of Amarillo, for plaintiffs in error.
Smith & Crawford and Oswald S. Parker, all of Beaumont, and Feagin, German & Feagin, of Livingston, for defendants in error.
This suit was filed in the district court of Jefferson county by J. H. Spivey, as plaintiff, against the Saner-Ragley Lumber Company, a private corporation, and W. G. Ragley, individually, as defendants, date of such filing being November 26, 1918. The purpose of the suit by Spivey was to recover damages for the alleged breach of an alleged written contract made and entered into between himself and said defendants, and he alleged that, in consequence of such breach of contract, he had sustained damages in the sum of $75,000, and prayed judgment against defendants, jointly and severally, therefor.
After being duly served with citation issued out of the district court of Jefferson county, both defendants filed in said cause their plea of privilege to be sued in the district court of Polk county, which plea of privilege was on the 17th day of March, 1919, heard by the district court of Jefferson county, and was sustained, and the venue of the suit changed to the district court of Polk county, in accordance with the prayer of the plea of privilege. Thereafter the clerk of the district court of Jefferson county transferred and forwarded to the clerk of the district court of Polk county the record in said cause, including all the original papers filed therein, and such record was filed in the district court of Polk county on April 14, 1919. After the plea of privilege had been acted upon and sustained by the district court of Jefferson county, but before the record of the cause had been filed in the district court of Polk county, the plaintiff, J. H. Spivey, died, leaving no will, and there was no administration upon his estate, and none was necessary.
On November 28, 1919, Mrs. Fannie Spivey, a feme sole, and a resident of Colquitt county, Ga., D. A. Spivey, and J. C. Spivey, residents of the state of South Carolina, Effie Spivey, a feme sole, Mrs. Belle Hart, joined by her husband, Scott R. Hart, J. F. Spivey, W. H. Spivey, and Lorene Spivey, all of whom were residents of Colquitt county, Ga., and said Lorene Spivey, being a minor and appearing by her guardian and next friend, L. N. Moore, filed in the district court of Polk county their written suggestion of the death of said original plaintiff, J. H. Spivey, which suggestion showed that J. H. Spivey had died after the suit was originally filed by him, and that he left no will, and that he was an unmarried man; and in that connection it was further shown that Mrs. Fannie Spivey was the mother of said J. H. Spivey, and that D. A. Spivey, J. C. Spivey, Effie Spivey, Mrs. Belle Hart, J. F. Spivey, and W. H. Spivey were the sole surviving brothers and sisters of the said J. H. Spivey, and that the minor, Lorene Spivey, was the only child and descendant of G. W. Spivey, deceased, who was a brother of said J. H. Spivey; and it was then shown that all these named persons were the heirs at law of said J. H. Spivey, and that they were his only heirs. It was then prayed by Mrs. Fannie Spivey and the others mentioned that they be permitted to make themselves parties plaintiff instead of said J. H. Spivey, and to prosecute the suit to judgment, as substituted plaintiffs in the cause. On December 1, 1919, the written suggestion of the death of the original plaintiff, J. H. Spivey, was heard by the court, and an order was on that day made and entered permitting the said Mrs. Fannie Spivey and the others named in the suggestion of death to make themselves parties plaintiff and to prosecute said cause to judgment.
On January 6, 1920, the cause was called in its regular order for trial in the district court of Polk county, at which time neither of said defendants had filed any answer to the merits; and thereupon the plaintiffs announced ready for trial, and the court, after hearing the pleading of plaintiffs and such evidence as was introduced by them, rendered judgment in favor of the plaintiffs and against both defendants, jointly and severally, for damages in the sum of $75,000, and for costs of suit. The term of the district court of Polk county adjourned on the 10th day of January, 1920, at which time neither of the defendants had filed any motion attacking said judgment.
On January 19, 1920, Mrs. Fannie Spivey, one of the substituted plaintiffs, as before shown, and who was the mother of the original plaintiff, J. H. Spivey, died, intestate, in Colquitt county, in the state of Georgia, where she then resided. On January 29th thereafter the surviving substituted plaintiffs — that is, all the substituted plaintiffs, with the exception of Mrs. Fannie Spivey — caused an execution to be issued out of the district court of Polk county upon the judgment aforesaid, and caused the same to be placed in the hands of the sheriff of said county, and directed the sheriff of said county to proceed to levy said execution upon property of said defendants, for the purpose of collecting and satisfying said judgment in favor of said plaintiffs. Proceeding under this execution, said sheriff at once attempted to levy the same, and called upon the defendant W. G. Ragley for the amount of money mentioned in said execution, etc., which was the first knowledge that the said Ragley or the Saner-Ragley Lumber Company had that such judgment had been rendered. By agreement between the sheriff and said Ragley, proceedings under the execution were held in abeyance until said defendants could prepare and file their application for writ of error to this court. On April 22, 1920, the defendants Saner-Ragley Lumber Company and W. G. Ragley, individually, filed with the clerk of the district court of Polk county their petition for writ of error, with a view of removing the cause to this court, and at the same time filed with said clerk their supersedeas bond for the writ. The petition for writ of error, as prepared and filed by plaintiffs in error, named as defendants all of the persons who had substituted themselves as plaintiffs in said cause, including the said Mrs. Fannie Spivey, who, as we have shown, was then dead, and also named as defendants the law firm of Smith & Crawford and Oswald S. Parker, who, by order of the court, had been allowed a one-half interest in the judgment that was recovered by said plaintiffs. On May 13, 1920, Messrs. Smith & Crawford, Oswald S. Parker, Feagin, German & Feagin, attorneys of record for the defendants in error, waived formal issuance of citation on the writ of error, and accepted service of such writ, but "reserving such exceptions and objections as may properly be urged to the petition for writ of error." Thereafter plaintiffs in error had prepared the transcript in this cause, and the entire record as made in the trial court, and on July 7, 1920, such transcript and record were filed by plaintiffs in error in this court.
It is shown, without dispute in the record before us, that at the time attorneys for the plaintiffs in error prepared and filed their petition for writ of error in this cause, as well as the supersedeas bond, neither of the plaintiffs in error had any knowledge or notice of the death of Mrs. Fannie Spivey, which, as we have shown, occurred in the state of Georgia just a few weeks after the judgment in this case was rendered. Nor did any of the attorneys for the plaintiffs in error have any such knowledge or notice, but such proceedings were had believing that said Mrs. Fannie Spivey was still living, with no reason on the part of either of the plaintiffs in error or their attorneys to suspect otherwise. At the time service of the writ of error was accepted by the attorneys for defendants in error, as we have before shown, said surviving defendants in error, as well as their said attorneys, knew that the said Mrs. Fannie Spivey was then dead, and said attorneys so accepted service of said writ, without notifying plaintiffs in error or their attorneys of such death. At the date of the filing of the petition for writ of error by plaintiffs in error, there was no administration upon the estate of Mrs. Fannie Spivey pending anywhere, and, as we believe, no necessity for any such administration in the state of Texas. It has been made to appear in this court, however, by affidavits relative to the motion to dismiss, that there was a necessity for administration upon the estate of Mrs. Fannie Spivey in Colquitt county, Ga., and that on December 11, 1920, a temporary administrator of her estate was appointed by the proper authority in Colquitt county, Ga.; and it also appears from data before us that on January 3, 1921, a temporary administrator of the estate of Mrs. Fannie Spivey was appointed by the probate court of Polk county, Tex. The motion to dismiss the writ of error was filed by the defendants in error in this court on December 15, 1920, and by order of this court this motion was set for hearing on January 19, 1921. The grounds upon which it is sought to dismiss the motion, as stated by defendants in error, are as follows:
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