Seydler v. Keuper, 8820.

• Decision Date: 27 October 1939
• Docket Number: No. 8820.,8820.
• Parties: SEYDLER et al. v. KEUPER et al.
• Court: Texas Court of Appeals

133 S.W.2d 189

SEYDLER et al. v. KEUPER et al.

No. 8820.

Court of Civil Appeals of Texas. Austin.

October 27, 1939.

Rehearing Denied November 22, 1939.

Error from District Court, Fayette County; M. C. Jeffrey, Judge.

Suit by Mrs. Elsie Keuper and husband against Mrs. Caroline Seydler, individually and as independent executrix and sole surviving devisee under the will of Rudolph H. Seydler, deceased, on vendor's lien notes and for foreclosure thereof. To review a judgment for plaintiffs, defendant brings error.

Reversed and remanded.

J. W. Ragsdale, of Victoria, for plaintiff in error.

Schwartz & Schwartz, of Hallettsville, Fred Blundell, of Lockhart, and H. R. Clark, of Schulenburg, for defendants in error.

BAUGH, Justice.

This is the second appeal of this case. Our opinion on the former appeal is reported in Tex.Civ.App., 92 S.W.2d 278. The only issue here involved is whether on the former appeal we reversed and remanded the case to the trial court with instructions to that court to render judgment; or reversed and remanded the cause generally for a new trial.

The issue presented on this appeal arose in the following manner: After the mandate of this court was sent to the trial court, the plaintiffs filed an amended petition alleging substantially the same grounds as those alleged in their petition on the former hearing, except that they sought judgment only on the notes past due. The defendants thereupon filed general and special demurrers, general denial, and a plea of payment by Rudolph H. Seydler, during his lifetime, to Paul Stuercke, during his lifetime, of all of said notes. Such plea of payment was not made in the first trial. The plaintiffs thereupon moved to strike such answer on the ground that the judgment and mandate of this court instructed the trial court to render judgment for plaintiffs against the defendants, and that the reversal was merely for the trial court to determine the amount of the judgment and carry out such instructions. In reply to this motion to strike, by sworn answer thereto, Mrs. Seydler set out the instruments relied upon to show payment of said notes; alleged that she did not know of their existence, nor that the notes had been paid when the case was tried before, because of the death of both her husband and of Stuercke, the payee in said notes; that she afterwards learned for the first time that said notes had been paid.

The plaintiffs' motion to strike the plea of payment was by the trial court sustained and judgment rendered for plaintiffs as prayed for; hence this appeal.

The portion of opinion on the former appeal relied upon by the defendants in error herein as constituting instructions to the trial court to render judgment for the plaintiffs below reads as follows : "The plaintiff was entitled to judgment, therefore, only for the principal of such notes as were past due, for all interest past due, for attorney's fees on such accrued indebtedness, and for foreclosure of the vendor's lien to that extent only. This error requires a reversal of the case. As to the proper judgment to be rendered upon another trial, and without prolonging this opinion by setting out a rule of guidance for the trial court, attention is directed to Warren v. Harrold, 92 Tex. 417, 49 S.W. 364, wherein the Supreme Court, speaking through Judge Gaines, disposes of the exact question here raised, and charts the course for the proper guidance of the trial court...