Simmons v. Arnim

• Decision Date: 20 March 1920
• Docket Number: (No. 2788.)
• Citation: 220 S.W. 66
• Parties: SIMMONS et al. v. ARNIM et al.
• Court: Texas Supreme Court

Page 66

220 S.W. 66

SIMMONS et al. v. ARNIM et al.

(No. 2788.)

Supreme Court of Texas.

March 20, 1920.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Susan S. Simmons and others against F. F. Arnim and others. Judgment for defendants was affirmed by the Court of Civil Appeals (172 S. W. 184), and plaintiffs bring error. Affirmed.

Locke & Locke, of Dallas, for plaintiffs in error.

Baker, Botts, Parker & Garwood and Jesse Andrews, all of Houston, for defendants in error.

PHILLIPS, C. J.

The question presented by the case is whether as against a collateral attack there should be held as invalid an execution sale of the property of minors under a judgment for the fee allowed their guardian ad litem in a case where they were the successful parties, and a further judgment, rendered at a subsequent term of the court, allowing the guardian ad litem an additional fee; the minors having no permanent guardian, and there being no attempt to execute the judgments through the Probate Court.

The present suit is an action of trespass to try title brought by the minors after attaining their majority, to recover the property so sold — about one-half of a block of real estate in the city of Houston.

The material facts, briefly stated, are these:

In August of 1893 one Jacob Chase instituted a suit in the District Court of Harris County against the minor grandchildren of Darius Gregg, the plaintiffs in the present action, their mother and their step-father, and against the step-father as the executor of the estate of their deceased father, to remove cloud from title to the property here involved and other property. It was recited in Chase's petition that there was a mutual agreement between himself and the defendants to have the difficulty, as pleaded by him, in their titles removed, but owing to the minority of some of the defendants it was necessary to invoke the judgment of the court. The prayer of the petition was that the rights between the defendants and himself be adjusted in accordance with the petition, "and for this," it concluded, "plaintiff has agreed that costs be adjudged against him."

It is evident from the recitals and prayer of the petition that Chase expected only a friendly suit and a judgment entirely favorable to himself; and that such anticipation was his reason for in effect asking that the costs be adjudged against him.

The minors were duly served with a copy of Chase's petition.

Their mother and step-father, and the latter as executor of their father's estate, filed an answer admitting the justice of Chase's claim and asking that judgment be given as asked by him.

S. Taliaferro, Esq., an attorney of Houston, was appointed by the court to act as guardian ad litem for the minors. He successfully resisted Chase's suit, and by cross-action against Chase obtained for the minors removal of cloud from the title to other lands claimed by Chase; a judgment in all things favorable to them being rendered April 14, 1894.

At one place in the judgment it was provided that the defendants should recover their "costs of court" against Chase. At its conclusion, it recited that $1,200.00 was allowed the guardian ad litem as a fee for his services, "rendered and to be rendered," in the recovery of the lands, to be paid out of the estate of the minors "recovered herein," but not out of any of their other property.

Chase appealed, and the judgment against him was affirmed in this court on October 28, 1895. 88 Tex. 552, 32 S. W. 520.

After the decision in the Supreme Court, the guardian ad litem, in December, 1895, filed in the District Court of Harris County a motion reciting that the services performed by him since the allowance of his original fee had not been foreseen or taken into consideration in that allowance, and praying for an additional allowance.

On June 1, 1896, this motion was granted by the court, and by order of that date an additional allowance of $500.00 was made the guardian ad litem, the order reciting that the total allowance of $1,700.00 should be paid out of the estate of the minors recovered in the cause.

On these two judgments execution was issued, in September, 1896, in favor of the guardian ad litem against the minors, commanding that $1,700.00, with 6% interest from April 14, 1894, on $1,200.00 and 6% interest from June 1, 1896, on $500.00, be made out of their goods, etc., and lands recovered in the suit.

The execution was levied upon the real estate in controversy, a part of that involved in Chase's action but not of that included in the minors' cross-action. It was bought for $1,700.00 at the sheriff's sale in November, 1896, by T. W. House, a banker, who took the title for the guardian ad litem as a means of securing indebtedness of the latter to him; the consideration for the sale being a credit upon the judgments.

The defendants in the present suit, filed in March, 1911, claim under the sheriff's deed to House.

A verdict for the defendants was directed in the trial court, the judgment being affirmed by the Court of Civil Appeals.

In our view of the case the execution sale should be held valid against collateral attack, the character of attack here made, unless

1. The original judgment taxing the fee for the guardian ad litem against the minors was void; or

2. That judgment could be lawfully executed only through the Probate Court; or

3. The execution itself was rendered void because of failure to sufficiently identify, according to the statutory requirements, a valid judgment authorizing its issuance.

In determining the effect of the original judgment in its taxing of the guardian ad litem's fee against the minors, it is immaterial here whether it was an erroneous judgment—that is, a voidable judgment. The judgment was before the court in the present case only collaterally; necessary, it is true, to support the execution and sale under it, but only as constituting a link in the defendants' chain of title. It is therefore of no consequence in this inquiry that for sufficient reasons it would have been reversible on appeal, or subject to annulment on direct attack. The question here concerns only the court's power. It has nothing to do with the exercise of the power. Only an entire want of power to render the judgment could make it void. The question is, therefore, simply whether the court had the power to render such a judgment; not whether, having the power, it rendered an erroneous judgment.

The fee of the guardian ad litem was taxable as part of the costs in Chase's suit. Article 1942. But the court was not bound, under the law, to tax it against Chase. The minors were the successful parties in the suit, and Article 2035 declares that such parties shall recover of their adversary in the suit all costs incurred in it, "except where it is or may be otherwise provided by law." In Article 2048 of the same chapter it so "otherwise provided." That article declares that "for good cause, to be stated on the record," the court may adjudge the costs otherwise than as provided in the preceding articles of the chapter.

It is therefore plain that the law did not absolutely require the court to tax the fee of the guardian ad litem against Chase. For "good cause," a matter for the court's decision, the court had, under the law, the authority—the power — to tax it against the minors. As against whom it should be taxed, whether Chase or the minors, was by the statute given to the court's discretion. It being within the court's discretion to tax the fee against the minors according to whether the court deemed there was "good cause" for such action, it was within the court's power to so tax it.

The statute directed, if the fee was so taxed, that the cause regarded by the court as sufficient to warrant such award in the judgment, be stated on the record. It does not appear that this was done. But this feature of the statute was only a direction as to the manner in which the court's power should be exercised. The power was, according to the statute, to be exercised in that way, and should have been. But failure to exercise it in that way did not rob the court of the power. At most, it was but an irregular exercise of the power. It may have rendered the judgment erroneous — voidable. It did not operate to make it void.

The court was doubtless of the view that under all the circumstances of the case it was inequitable to tax the fee against Chase, but because of the service rendered the minors by the guardian ad litem in quieting their title to the lands involved, it was more just to make it a charge upon the lands themselves. No other view, under the record, is to be imputed to the court in its action. Whether there was fair warrant for this view, whether the court reached the proper conclusion, and therefore whether its judgment in this respect was correct, are all questions wholly beside the true one here. The court had the authority, the power, under the statute to decide the matter and award the fee as it did in the judgment. That forecloses all question as to the validity of the judgment in this respect against collateral attack.

It is denied that the court had jurisdiction of the minors for the rendition of such a judgment, because, it is urged, they were not summoned in Chase's suit to answer any such demand as that presented by the guardian ad litem's fee, and hence were not before the court for any such adjudication; and further, because they were unrepresented in the adjudication, the interest and position of the guardian ad litem with respect to the fee being adverse to them.

The court had in Chase's suit jurisdiction over the persons of the minors, obtained by the due service of citation. Having jurisdiction of their persons, the minors were before the court for judgment, either favorable or adverse, as to any thing that the court had the power to determine in the suit, or lawfully incident to its determination. The power of the...