Seiter v. Marschall
| Decision Date | 08 May 1912 |
| Citation | 147 S.W. 226 |
| Parties | SEITER v. MARSCHALL et al. |
| Court | Texas Supreme Court |
Action by Temple D. Smith and others against Ernst Marschall and another, in which defendant counterclaimed and appealed to the Court of Civil Appeals from an adverse judgment. From an order granting defendant's motion to dismiss his appeal, opposed by his attorneys, O. R. Seiter, one of his attorneys, brings error. Reversed and remanded for further proceedings.
O. R. Seiter, of Dallas, pro se. J. H. McLean, of Llano, for defendants in error.
Temple D. Smith, Adolph Gold, and Fred Walter, as partners, instituted this suit against Ernst Marschall and wife to recover the amount of a debt due them by Marschall, and for the foreclosure of a deed of trust lien upon certain real estate granted by Marschall and wife to secure its payment. The defendants by their answer resisted the foreclosure of the lien upon the ground that the real estate in question constituted their homestead; also contending that the note evidencing the alleged indebtedness was void because given in payment of usurious interest. By way of counterclaim Ernst Marschall sought recovery against the plaintiffs for the amount of alleged usurious interest paid by him to the plaintiffs and for penalties under the statute. The trial resulted in a judgment for the plaintiffs for their debt, but without foreclosure of their lien, and against the defendant Ernst Marschall upon his counterclaim. From this judgment Ernst Marschall perfected his appeal to the Court of Civil Appeals for the Third District.
The cause was submitted in that court on May 11, 1910, upon briefs filed by his attorneys of record, O. R. Seiter and J. H. Tallichet Esqs.; no briefs being filed in behalf of appellees. On June 16, 1910, before the case was passed upon by the Court of Civil Appeals, Ernst Marschall, the appellant, filed a motion to withdraw the submission and dismiss his appeal, upon the ground stated that prior to the submission the matters in controversy have been compromised and settled between the parties and it had been agreed by them that his appeal should be dismissed; that he had so notified his attorney, O. R. Seiter, Esq., and instructed him to file such motion, which he had refused to do, resulting in the cause being submitted without appellant's knowledge or consent.
Messrs. Seiter and Tallichet filed a sworn answer in opposition to this motion, wherein it was set up that they had been employed by Marschall as his attorneys in the case as evidenced by a written power of attorney duly executed and acknowledged, a certified copy of which was attached, by the terms of which, in consideration for their services, he conveyed to them two-thirds of whatever amount might be recovered by judgment, compromise settlement, or otherwise, upon his counterclaim against the plaintiffs in the suit; that this instrument was filed in the papers of the case in the trial court, on or before March 7, 1910 (which was after judgment had been rendered and the appeal perfected), and a notation thereof made upon the margin of the minutes of the trial court, where the judgment was recorded; that on or before March 17, 1910, they filed briefs for the appellant both in the trial court and the Court of Civil Appeals; and that on April 7, 1910, Marschall for the first time requested his attorney, O. R. Seiter, to dismiss the appeal. They alleged that they were the sole and unconditional owners of an undivided two-thirds interest in the cause of action alleged against the plaintiffs in the suit, which interest had never been compromised or settled, and prayed that Marschall's motion to withdraw the submission and dismiss the appeal be denied. While the answer of Messrs. Seiter and Tallichet was filed after the submission of Marschall's motion, it was considered by the Court of Civil Appeals. The court sustained Marschall's motion, and accordingly set aside the submission and dismissed the appeal. The case is here to review its action on writ of error prosecuted by O. R. Seiter alone, Mr. Tallichet having withdrawn from it and disclaimed any interest in the subject-matter, without prejudice to the former's rights, after the motion for rehearing was filed in the Court of Civil Appeals.
The sworn answer and opposition of the plaintiff in error Seiter to Marschall's motion to dismiss the appeal is to the effect that the instrument in virtue of which the latter conveyed to Messrs. Seiter and Tallichet a two-thirds interest in the cause of action asserted in the suit by Marschall against the plaintiffs, here the defendants in error, was filed in the papers in the case in the trial court and notation thereof made upon the minutes when the judgment was recorded, on or before March 7, 1910. This seems to be admitted in the brief and argument filed in behalf of defendants in error. Marschall's motion to dismiss the appeal, the ground of which was that the matters in controversy had been settled between parties, does not make it plain when the settlement occurred, though it would appear to have been subsequent to March 7, 1910, as the allegation in this respect in the motion only is that it was made "prior to the submission of said cause in the honorable Court of Civil Appeals." It should be stated, however, that this is not conceded by defendants in error. Neither is it denied; the statement of counsel for defendants in error in his brief being that the settlement was agreed to prior to the filing by Seiter of the instrument of conveyance in the trial court, and without any actual notice upon the part of defendants in error of the existence of any interest in Seiter. At all events, showing was made in the Court of Civil Appeals upon the sworn answer of Seiter that the interest in the cause of action that became vested in him and his associate counsel by Seiter's conveyance remained absolute and unaffected by Seiter's settlement, and while this court has nothing to do with a decision of that issue, it is our duty to treat the question before us upon this premise.
That question is whether Marschall's motion and Seiter's answer presented such an issue in respect to the jurisdiction of the honorable Court of Civil Appeals as to make it incumbent upon that court, under article 998, to ascertain the facts before dismissing the appeal whereby its jurisdiction was terminated and its power to review the case was ended. If Marschall's settlement, made the ground of the motion to dismiss, was effectual to satisfy the entire cause of action, it was likewise sufficient to conclude the jurisdiction of the Court of Civil Appeals. If, however, he owned, not the...
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