Schelb v. Sparenberg

• Decision Date: 01 October 1937
• Docket Number: No. 13600.,13600.
• Citation: 111 S.W.2d 324
• Parties: SCHELB et al. v. SPARENBERG et al.
• Court: Texas Court of Appeals

111 S.W.2d 324

SCHELB et al. v. SPARENBERG et al.

No. 13600.

Court of Civil Appeals of Texas. Fort Worth.

October 1, 1937.

Rehearing Denied December 10, 1937.

COPYRIGHT MATERIAL OMITTED

Error from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Suits, which were consolidated and tried together, by Charles Sparenberg and another against P. J. Schelb and another. To review a judgment in favor of the plaintiffs, the defendants bring error.

Judgment affirmed.

H. S. Lattimore, of Fort Worth, for plaintiffs in error.

M. Hendricks Brown, Cantey, Hanger & McMahon, and Gillis A. Johnson, all of Fort Worth, for defendants in error.

BROWN, Justice.

Defendants in error, Charles and Russell Sparenberg, grandsons of H. Sparenberg and Johanna Sparenberg, after the death of their grandmother (their grandfather having died many years before), brought suit against their aunt, Mrs. Lizzie Schelb and her husband, who are plaintiffs in error, to establish and recover an undivided one-half interest in all property belonging to the estate of their said grandparents and also to set aside and deny the right to the probate of a certain will purported to have been executed by Mrs. Johanna Sparenberg; and the two causes, being lodged in the same district court, were consolidated and tried together.

We will designate the parties as appellants and appellees for convenience.

Trial was had to a jury and nine special issues were submitted for determination.

The first issue inquired whether or not it was the intention of H. Sparenberg, in the making of his will, to provide that whatever remained of the entire community estate at the death of his wife should descend to their two children, George Sparenberg (the father of appellees, who died prior to the time Johanna Sparenberg died) and Mrs. Lizzie Schelb, or their heirs, share and share alike. The jury found that such was his intention.

Issue No. 2 inquired whether or not Johanna Sparenberg elected to take under the terms of her husband's will. The jury found that she did.

Issue No. 3 required the jury to find whether or not checks and certificates of deposit, made payable to Mrs. Johanna Sparenberg, which were endorsed in blank by Mrs. Sparenberg between the time when she came to Fort Worth to live with Mrs. Schelb (in February 1929) and the time of her demise, in November, 1933, were received by Mrs. Schelb for the use and benefit of Mrs. Sparenberg. The jury answered this issue in the affirmative.

Issue No. 4 required the jury to find whether or not the checks and certificates of deposit inquired about were obtained by Mrs. Schelb from Mrs. Sparenberg through undue influence exerted over her by Mr. and Mrs. Schelb. The jury answered this issue in the affirmative.

Issue No. 5 required the jury to find whether or not Mrs. Sparenberg was caused to execute the purported will by reason of undue influence exerted over her by the Schelbs. The jury answered this issue in the affirmative.

Issue No. 6 required the jury to find whether or not a certain certificate of deposit in the sum of $1,000 was delivered to Mrs. Schelb by Mrs. Sparenberg as a loan. The jury answered, "Yes."

To issue No. 7 the jury answered that at the time Mrs. Sparenberg signed the purported will she did not know the provisions and contents of the same.

To issue No. 8 the jury found that the checks which were made payable to Mrs. Sparenberg and delivered to Mrs. Schelb, between February, 1929, and November, 1933, were not gifts. And a similar finding was made to issue No. 9, which inquired about the certificates of deposit in question.

Upon this verdict, judgment was rendered for appellees against appellants, denying the will to probate and for title to and possession of one-half of the estate involved.

Being aggrieved at the judgment, Mr. and Mrs. Schelb have appealed.

We find 42 assignments of error in appellant's brief and 38 propositions urged in support of same.

The first 21 assignments of error complain of the following matters:

(1) A statement by the trial court with respect to depositions taken in behalf of both appellants and appellees.

(2) Complaint with reference to the cross-examination on the part of appellees of appellants' witness, Mrs. McCain, and the introduction of evidence to impeach such witness.

(3) Complaint of the refusal on the part of the trial court to permit appellant Mrs. Schelb, on cross-examination, to testify to transactions had with her deceased mother, and the refusal of the trial court to permit such witness to testify to such transactions on direct examination.

(4) Complaint of the admission of certain papers in which had been wrapped Christmas presents sent by appellees to their grandmother, which were returned unclaimed and refused, and having such stamped on same.

(5) Complaint of admission in evidence of the testimony of S. H. Morrison, attorney for H. Sparenberg, concerning the instructions given to him by Mr. Sparenberg when he prepared Mr. Sparenberg's will.

A motion for a new trial was filed in the district court and none of the matters complained of in the first 21 assignments of error were incorporated in, or alluded to in, the motion for new trial.

Objection is made on the part of appellees to a consideration of these first 21 assignments of error, and we believe the objection is well taken.

An examination of the opinion in the case of Stillman v. Hirsch (Tex.Civ.App.) 84 S.W.2d 501, wherein a writ of error was granted by the Supreme Court and an exhaustive and able opinion written by Mr. Justice Sharp affirming the cause, will disclose that old rule 71a was not stripped of its potency by the enactment of any of the recent statutes which have caused so much controversy. This old rule, before it was amended by the Supreme Court in the spring of 1937, required that a motion for new trial should be filed in all cases where the parties desired to appeal or sue out a writ of error, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for new trial. Stillman v. Hirsch, 99 S.W.2d 270.

None of the matters complained of in the first 21 assignments of error, which were not alluded to or raised in the motion for new trial in the lower court, presents fundamental error.

We do not believe that they should be considered under the holding in the authority above cited. But, if we are required to consider same, we do not find any merit in them, for the following reasons:

The complaint concerning the statement or instruction given by the trial court to the jury with reference to the depositions of witnesses, which had been taken by both appellants and appellees, shows that the trial court simply said to the jury: "This deposition is sworn testimony of a witness. He is testifying under oath when he gives his deposition." We fail to see how this could be construed as a comment on the weight of the evidence, and such is the complaint made. Any layman, serving as a juror, would of necessity know that a deposition is the sworn testimony of a witness and that he is testifying under oath. How appellants could have been injured by this statement of the trial court, even if the court had limited this statement or instruction to the depositions taken by appellees, we are unable to see, but the record discloses that the statement or instruction referred to all depositions taken by all parties, and, if any benefit or advantage flowed to appellees by such instruction, it likewise inured to the benefit of appellants.

The complaint with reference to the cross-examination of appellants' witness, Mrs. McCain, discloses that such witness was a neighbor and close friend of appellants and was in sympathy with the defenses and contentions made by the appellants and she was testifying in their behalf concerning the relationship that existed between the late Mrs. Sparenberg and appellants, and the substance of her testimony was that the treatment of Mrs. Sparenberg by appellants was practically perfect and that they did everything within their power to make her comfortable and happy.

On cross-examination appellees sought to show from this witness, and did show, that appellants would not permit the appellees, her own grandsons for whom she had expressed and shown great love and affection, to see her or communicate with her, and appellees sought to impeach, and did impeach, such witness, establishing the fact that appellants would not permit her grandsons to see Mrs. Sparenberg, and that all letters mailed by them to Mrs. Sparenberg and all packages containing Christmas presents sent to her were intercepted by appellants and returned to the senders.

The many complaints made with respect to the exclusion by the trial court of testimony given by Mrs. Schelb in answer to questions propounded to her on cross-examination disclose that perfectly legitimate questions were propounded to this appellant on cross-examination, and that in answering same she voluntarily testified to transactions had with the deceased and that appellants sought on direct examination to introduce such testimony before the court and jury.

The record discloses that appellees never waived their rights under the provisions of article 3716, Rev.Civ.Statutes; they never called Mrs. Schelb as a witness to testify to any transaction had with her deceased mother.

The situation presented to us and our ruling thereon is very much like, and supported by, the following authorities: Himes v. Himes, 55 S.W.2d 181, opinion by the late Chief Justice Conner of this court; Huggins v. Myers, 30 S.W.2d 565, opinion by Chief Justice Dunklin of this court; Austin v. Rupe (Tex.Civ.App.) 141 S.W. 547; Salvini v. Salvini (Tex.Civ.App.) 2 S.W.2d 963; American Exchange Nat. Bank v. Keeley (Tex.Civ.App.) 39 S.W.2d 929; Tharpe v. Schmall (Tex.Civ.App.) 44 S.W. 2d 505; and Dannenbauer v. Messerer's Estate (Tex.Civ.App.) 4 S.W.2d 620, affirmed Compton v. Dannebauer, 120 Tex....