Shanklin v. Moseley

• Decision Date: 19 June 1926
• Docket Number: (No. 9647.)
• Citation: 287 S.W. 121
• Parties: SHANKLIN et al. v. MOSELEY.
• Court: Texas Court of Appeals

287 S.W. 121

SHANKLIN et al. v. MOSELEY.

(No. 9647.)

Court of Civil Appeals of Texas. Dallas.

June 19, 1926.

Rehearing Denied October 16, 1926.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by Frank M. Shanklin and wife against Annette Moseley. Judgment for defendant, and plaintiffs appeal. Affirmed.

Clark & Clark, K. Van Slycke, and John F. Murphy, all of Dallas, for appellants.

K. R. Craig, of Dallas, for appellee.

VAUGHAN, J.

On January 15, 1924, appellee instituted against appellants, Frank M. Shanklin and wife, Carrie M. Shanklin, an action of trespass to try title to two tracts of land situated in the city and county of Dallas, state of Texas, first tract being lot 5, block 637, and second tract being lot known as No. 2917, Bowser avenue, and a part of block 637, according to the Murphy & Bolanz official map of the city of Dallas; said trespass to try title suit was numbered 50369, and styled Annette Moseley v. Frank M. Shanklin et al., on the docket of the trial court.

On March 17, 1924, appellants filed in that suit their answer, cross-action, and application for the appointment of a receiver, in which appellants admitted that they had received loans of money on different dates and in various sums from appellee, for which they were indebted, aggregating about $4,500. and alleging that said money was borrowed from appellee on account of and for part purchase money on the following described real estate: Lot and improvements located thereon at 3602 Noble street; lot and improvements thereon located at 2917 Bowser avenue; and the lot and improvements thereon located at 2918 Lemmon avenue — all in the city and county of Dallas, state of Texas. They sought an accounting by appellee to appellants for the amount of rents collected by her on account of said properties, alleged to be approximately $1,500.

On November 18, 1924, appellee answered said cross-action by appropriate pleas which will not be discussed, as same were supplanted by appellee filing her third amended original answer and cross-action on February 23, 1925, which contained a full statement of all items of debt asserted by appellee against appellants, and all items collected as rents from the properties involved, and other sums of money admitted to have been received by appellee as items of credit in favor of appellants. Further presentation of this amendment is unnecessary, as same will be fully reflected in the discussion of the issues herein.

On the 3d day of December, 1924, on exception of appellee being sustained to appellants' cross-action, as filed in the trespass to try title suit, said cross-action seeking an accounting was severed from said suit and ordered filed, as a separate and independent suit by appellants as plaintiffs against appellee as defendant, to be numbered and styled on the docket of the trial court as No. 50369½, Frank M. Shanklin et al., v. Annette Moseley.

The receiver appointed in this cause March 22, 1924, filed his application on February 24, 1925, for the appointment of a master in chancery, which motion, on an ex parte hearing, was granted on the day filed, and Hon. W. A. Hudson appointed to that position.

A trial of said cause No. 50369½ was had to a jury on the 3d day of March, 1925, which resulted in a judgment in favor of appellee against appellants for the sum of $8,905.78, with the foreclosure of vendor's deed of trust and contract liens to secure the payment of all of said sum, except $138.04 thereof on the following property situated in the city and county of Dallas, state of Texas, and designated according to the official map of the city of Dallas as follows: First tract — a part of lot 7 in block 637, and being the same property conveyed to appellee by appellants by deed dated November 22, 1923, recorded in volume 1057, page 93, of the deed records of Dallas county, Tex.; second tract — all of lot 1 in block 3 of Middleton Brothers' Oak Grove addition to the city of Dallas. The verdict, on which the judgment was rendered, was returned under direction of the trial court.

Appellants' first assignment of error and propositions embracing same challenge the order entered on application of appellee discharging the master in chancery appointed in this cause. The order appointing the master was entered after appellee had filed her cross-action containing an itemized statement of the debits and credits involved in the accounting sought by appellants. The statement contained the respective dates and amounts of the several sums of money claimed by appellee to have been furnished and advanced by her to appellants, as well as the dates and amounts of the credits that appellee admitted appellants were entitled to. Appellants did not controvert this itemized statement further than by their general denial. Appellee's statement of the several transactions between her and appellants did not present an involved statement of any transaction or a long drawn out course of dealings between the parties, such as would require the services of a master in chancery to pass upon, in order that the court in trying the case would not be unnecessarily delayed in passing upon many controverted items; and it did not present, for the determination of a a master in chancery, any material matters in dispute between the parties in reference to the account that could not be readily submitted to and determined by the court, in the due course of the trial of the cause. No necessity existing for the appointment of a master, there was certainly no error in the action of the court in rescinding the order appointing him. 10 R. C. L. 510, par. 291, 292; Texas Revised Civil Statutes of 1925, arts. 2293 and 2319.

Appellants' contention in this respect is based upon the language of the article providing for the appointment of a master in chancery; viz, "shall in every case appoint a master in chancery." Article 2320. Without the existence of a necessity therefor, it is not to be assumed from this language that the Legislature intended for a master in chancery to be appointed in every case where a receiver was appointed, regardless of whether or not there existed a necessity for the services of such an officer to make an orderly disposition of the cause. Evidently, the Legislature had in mind the application of the rules of equity and the usages in equity in the matter of appointment of receivers and masters in chancery when this act was adopted. For instance, throughout the act the usages in equity and the rules in equity are referred to and made the governing consideration in the administration of the law. The first article of the act, after enumerating the many cases in which receivers may be appointed, says, "In all other cases where receivers have heretofore been appointed by the usages of the court of equity."

In article 2319, supra, next preceding the one providing for a master in chancery, the statute provides:

"In all matters relating to the appointment of receivers, and to their powers, duties and liabilities, and to the powers of the court in relation thereto, the rules of equity shall govern whenever the same are not inconsistent with any provision of this chapter and the general laws of the state."

We think the proper construction of this section of the statute with reference to the appointment of a master in chancery, when construed in connection with the rest of the act, to mean and be confined to such cases wherein, according to the rules of equity and the usages of equity, the services of a master in chancery are required. As stated in 10 R. C. L. par. 291, the rules and usages in equity in such cases are as follows:

"Inasmuch as references are ordered merely as an aid and assistance to the court, a reference is not necessary and may be dispensed with in any case where the court can get along well enough without it. A reference will not be ordered, even in a matter of accounting, where the transaction to be considered is short and in no respect complex, and it is ordinarily within the discretion of the court, if for any reason it deems it proper to do so, to state the account itself after an examination of the testimony. Questions fit for reference will be determined by the court itself, without a reference, whenever it can conveniently do so with the saving of time and expense."

In this case, it was simply a matter of debits and credits, all plainly set out and itemized in appellee's statement, with no complications whatever — none of the items being disputed specifically, nor any issue raised by the pleadings with reference to any matter except by a general denial — and the only matter that was submitted to the court, upon which the master in chancery could have passed, was the testimony in support of the several items of said account. This assignment and the propositions based thereon are overruled.

Appellants, by their second assignment of error and propositions thereon, earnestly contend that the court erred in refusing to grant their application for a continuance. This cause, by proper order entered on or about February 2, 1925, had been set for trial for March 2, 1925. On the 24th day of February, 1925, the trial court, on the application of the receiver in this cause, appointed a master in chancery. The order appointing said master in chancery, in part, contains the following provision:

"And this case is hereby referred to him, for a hearing and accounting and his report to this court, and to that end he will take all necessary evidence as in open court, and with the powers of the court, and upon the pleadings filed in the case, and by the oral testimony and evidence, including books and accounts, * * *" etc.

This appointment was made without notice to appellee or her attorneys.

On the 26th day of February, 1925, Hon. W. A. Hudson, the master in chancery appointed by the trial court, issued notice to the parties advising them of his appointment, and notifying them to appear...