Simmons v. Arnim

• Decision Date: 03 December 1914
• Docket Number: (No. 370.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 172 S.W. 184
• Parties: SIMMONS et al. v. ARNIM et al.
• Court: Texas Court of Appeals

Page 184

172 S.W. 184

SIMMONS et al. v. ARNIM et al.

(No. 370.)^†

Court of Civil Appeals of Texas. El Paso.

December 3, 1914.

Rehearing Denied January 7, 1915.

Error to District Court, Harris County; Chas. E. Ashe, Judge.

Action by Susan S. Simmons and others against F. F. Arnim and others. There was a judgment for defendants, and plaintiffs bring error. Affirmed.

Locke & Locke, of Dallas, for plaintiffs in error. Taliaferro & Taliaferro, E. P. & O. K. Hamblen, and Baker, Botts, Parker & Garwood, all of Houston, for defendants in error.

HARPER, C. J.

This suit was brought by Susan S. Simmons and husband, J. W. Simmons, Mary C. Langley and husband, W. G. Langley, and William B. Gregg, on March 13, 1911, in trespass to try title, against F. F. Arnim, E. B. Parker, trustee, Andrew Dow, Kate Scanlan, Henry Albrecht, S. Taliaferro, and Rosalie H. Taliaferro, Robert Talbot, Max Murray, and Adrian Bailey, to recover the east part of block one of Darius Gregg's First addition to the city of Houston. Robert Talbot, Max Murray, and Adrian Bailey, tenants in possession, disclaimed. The other defendants answered by pleas of not guilty and limitations of three, five, and ten years, and by a special plea that the property had been acquired by them through a sale under execution on a judgment against the plaintiffs for a fee allowed to a guardian ad litem for the plaintiffs in a suit styled Jacob Chase v. W. B. Gregg et al., in the district court of Harris county; that the fee was properly allowed to the guardian ad litem; that it was properly taxed against the plaintiffs; that judgment was properly rendered against them accordingly; that the execution in question properly issued on such judgment; that the land was seized and sold thereunder; that it sold for a fair price; and that, if there were any irregularities in the sale, the court should confirm the same. The validity of such proceedings was the primary issue in the case. Each of the three plaintiffs requested a peremptory instruction in his favor for a one-third interest in the land, but the court refused the requests, and, instead, instructed the jury to return a verdict for the defendants. Judgment was entered accordingly; the plaintiffs' motion for a new trial was overruled; and the plaintiffs brought the case to this court by writ of error.

Divested of all immaterial matters, the plaintiffs show title to the land in themselves through proper muniments of title and by inheritance from ancestors, unless divested from them by a sale under execution issued on a judgment in favor of S. Taliaferro, guardian ad litem, in the suit of Jacob Chase v. W. B. Gregg et al. The essential facts surrounding that judgment and leading up to the issuance of execution and sale thereunder, to the proper determination of the issues presented here, are as follows:

August 23, 1893, Jacob Chase filed suit against Dr. Lipscomb and wife and the plaintiffs in this suit, who were then minors, to quiet the title to certain property, including that in question; all the parties served by citation. S. Taliaferro was appointed guardian ad litem to represent the minors, and did represent them in the trial of the cause. The suit resulted in judgment for the minors. The trial court, in the same judgment that decreed the lands to the minors, made an allowance of $1,200 fee to guardian ad litem, and gave judgment therefor, and directed that execution issue for same against the property recovered only. After the case had been appealed and affirmed, the trial court entered an order which determined that the first allowance was insufficient, and allowed $500 additional to be paid out of the estate decreed to them in the suit. Thereafter execution issued, was served, and the property sold to T. W. House for $1,700, its fair value, who took title for S. Taliaferro, as a convenient method of making the land stand as security for indebtedness of Taliaferro to House, and the amount was credited on the execution.

Appellants, by their first, second, and third assignments, assert that the trial court erred in its instruction for defendants:

First. Because the undisputed evidence showed that the plaintiffs owned and were entitled to the possession each of an undivided one-third interest in the land in suit, unless the title had been divested from them by the sale under the execution issued on the judgments in favor of Taliaferro, guardian ad litem.

(a) Title will not be divested by an execution sale when the statutes expressly or impliedly forbid the enforcement of the judgment that way, and, the judgment being against minors, it should have been collected only through a guardianship, and not by service of a sale under execution.

(b) Title will not be divested by execution sale unless the judgment wherein the execution issued be valid and authorize the execution, and unless the execution be in conformity with the statutory requirements.

(c) A single execution drawing its authority jointly from two judgments is void if either judgment is void.

(d) An execution issued for a substantially greater sum than that legally imposed by judgment is void, and a sale thereunder is ineffectual, especially if the sheriff, in performing the excessive command, seizes and sells more property than the judgment warrants.

(e) A judgment rendered against minors when they are not, either voluntarily or compulsorily, before the court, and are not represented by guardian or guardian ad litem, is void. The citation served upon the minors at the commencement of the suit was not sufficient to retain them for the purpose of these judgments, and, the guardian ad litem being adversely interested to them, they should have been cited or been represented by another guardian ad litem.

(f) The execution was not in conformity with the requirements of the statutes, in that it did not correctly describe the purported judgment or judgments on which it was issued, or the parties to the same, and did not set forth the property to be sold for the satisfaction thereof. Seventh, eighth, and ninth assignments.

The suit of Chase v. Gregg having been filed, and the minors cited to appear and answer, in the absence of a guardian of their estate, it became the duty of the court in which the cause was pending to appoint a guardian ad litem. Article 1942, Revised Civil Statutes; Duke v. Wheeler, 28 Tex. Civ. App. 391, 67 S. W. 439; Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567.

And by the same article it is the duty of the court to decide upon a reasonable fee for his services, and tax it as a part of the costs of the suit, and the costs may be taxed against either party (article 2048, Revised Civil Statutes), and it was not error to tax...