Speckels v. Kneip, 4199.
| Decision Date | 11 June 1942 |
| Docket Number | No. 4199.,4199. |
| Citation | 170 S.W.2d 255 |
| Parties | SPECKELS et al. v. KNEIP. |
| Court | Texas Court of Appeals |
Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.
Consolidated suit by Walter Kneip against John A. Speckels and others in trespass to try title and for partition. Mrs. Johanna Carter sought by cross-action to establish and foreclose a judgment lien against interest of Alvin Speckels. Mrs. Pauline Speckels sought by cross-action to establish and foreclose judgment lien against interest of Gustav Speckels and John A. Speckels. Herman E. Becker, and others, sole independent executors of estate of Hermann Becker, deceased, and sole testamentary trustees under his will, sought by cross-action to establish and foreclose judgment lien against interest of Alvin Speckels. From the judgment, defendants Mrs. Johanna Carter, John A. Speckels, Mrs. Clara Weikel, T. F. Weikel, Albert Speckels, Norma Speckels, Elton Speckels and Gustav Speckels appeal.
Reversed.
Geo. L. Kroll and John C. Marburger, both of LaGrange, for appellants.
Moss & Moss, of LaGrange, for appellee.
McGILL, Special Commissioner.
This is an appeal from a judgment of the District Court of Fayette County, 22nd Judicial District. Two suits were filed in the trial court, one styled Mrs. Johanna Carter v. A. W. Speckels et al., No. 8730, for foreclosure of a judgment lien against the land hereinafter described, and one styled Walter Kneip v. John A. Speckels et al., No. 8731, in trespass to try title and for partition of said land. In the latter suit all parties to the former were made parties defendant. Other parties who held judgments against defendants A. W. Speckels, Gustav Speckels and John Speckels were also made defendants. The court consolidated both suits under No. 8731, and ordered all parties to replead, Walter Kneip as sole plaintiff and all other parties as defendants. As repleaded, the action was in the statutory form of trespass to try title to four tracts of land in the City of La Grange, in Fayette County, being a part of the John H. Moore one-half League in said county, and shown on the original map of the City of La Grange as follows:
First Tract: Lots 82 and 89 and parts of Lots 81 and 100, Block No. 11;
Second Tract: Lot No. 7, in the Subdivision of Farm Lot 32;
Third Tract: Part of Lot No. 177, Block No. 23;
Fourth Tract: Part of Lot No. 196, Block No. 23.
Plaintiff claimed ownership in fee simple in an undivided 7/112 interest in said land, and that defendants, Mrs. Clara Weikel, Mrs. Johanna Carter, Albert Speckels, John A. Speckels, Alvin Speckels, and Gustav Speckels, each owned an undivided 15/112 interest therein, and the defendants Norma Speckels and Elton Speckels together owned an undivided 15/112 interest. He claimed the other defendants owned no interest in the property, but were asserting liens against the interest of Alvin Speckels and Gustav Speckels therein, except the defendant Joe (T. F.) Weikel, who was joined pro forma with his wife, Clara Weikel. He asserted the property was incapable of a fair partition in kind, and asked that it be sold and the proceeds divided.
The defendant Alvin Speckels filed no answer. The other named defendants answered by plea of not guilty, general demurrer and general denial. Affirmative relief was sought by cross actions of Mrs. Johanna Carter and other defendants.
Mrs. Carter sought to establish and foreclose a judgment lien against the interest of Alvin Speckels. Another defendant, Mrs. Pauline Speckels, the former wife of Gustav Speckels, sought to establish and foreclose a judgment lien against the interest of Gustav Speckels and John A. Speckels; other defendants, Herman E. Becker, Theodore E. Becker and August Haenel, sole independent executors of the estate of Hermann Becker, deceased, and sole testamentary trustees under his will, sought to establish and foreclose a judgment lien against the interest of Alvin Speckels.
John A. Speckels pleaded that the judgment secured against him by Pauline Speckels had been discharged in bankruptcy.
Judgment was rendered decreeing ownership of the land as follows:
Undivided
interest
Walter Kneip 7/112
Mrs. Clara Weikel 15/112
Mrs. Johanna Carter 15/112
Albert Speckels 15/112
John A. Speckels 15/112
Alvin Speckels 15/112
Gustav Speckels 15/112
Norma Speckels and Elton
Speckels, together, 15/112
A first judgment lien was established and foreclosed in favor of Mrs. Johanna Carter against the interest of Alvin Speckels; and a secondary judgment lien in favor of Herman E. Becker, Theodore Becker and August Haenel, as sole independent executors of the estate of Hermann Becker, deceased, and the sole testamentary trustees under his will, was also established and foreclosed against the interest of Alvin Speckels.
A first judgment lien was established and foreclosed in favor of Mrs. Pauline Speckels against the interest of Gustav Speckels.
The court found that a fair partition of the property in kind could not be made, and ordered that the property be sold and the proceeds partitioned according to the interest of the respective parties.
The defendants Mrs. Johanna Carter, John A. Speckels, Mrs. Clara Weikel, T. F. Weikel, Albert Speckels, Norma Speckels, Elton Speckels, and Gustav Speckels have appealed.
We are confronted with a motion filed by appellee urging us to dismiss the appeal because the issues involved in the appeal have become moot. The motion is based on the theory, supported by documentary evidence accompanying it, that since an order of sale was issued in conformity with the judgment and the property sold thereunder, and appellants, except appellant T. F. Weikel, having purchased all interest therein, and all of the parties to the judgment having received their proportionate part of the proceeds of such sale, the judgment has been fully and finally satisfied and the matters in controversy as between appellants and appellee have ceased to exist. We overrule the motion.
The fact that a complete execution of the judgment appealed from is shown furnishes no reason why the action of the lower court should not be reviewed. Cravens v. Wilson, 48 Tex. 321; 3 Tex.Jur. p. 74, § 28.
Appellants still have a vital interest in that part of the fund which has been paid to appellee, if the judgment was improperly rendered for him.
Appellee by cross-assignment in his brief urges us to dismiss the appeal because the appeal bond is payable to Walter Kneip alone. He insists that in order for this court to have acquired jurisdiction of the appeal, the judgment creditors, Mrs. Pauline Speckels and the executors and testamentary trustees of the estate of Hermann Becker, deceased, should have been made obligees in the bond.
It is stated in the appeal bond that the plaintiff, Walter Kneip, recovered a judgment for title to 7/112 undivided interest of the lands in question against the named defendants who have appealed, and that such defendants desire to appeal from said judgment. No appeal has been taken from the judgment in favor of Mrs. Pauline Speckels as against Gustav Speckels; nor from the judgment in favor of Mrs. Johanna Carter against Alvin Speckels; nor from the judgment in favor of the executors and testamentary trustees of the estate of Hermann Becker against Alvin Speckels; nor has Alvin Speckels appealed from the judgment of Walter Kneip against him. Therefore, these portions of the judgment have become final and are not before this court for review. Anderson v. Automobile Finance Co., Tex.Civ.App., 260 S. W. 1092.
We fail to see how an appeal from that portion of the judgment awarding title to 7/112 undivided interest in the property to plaintiff as against appellants can adversely affect the interests of these judgment-lien holders. The relief sought by appellants is to enlarge their own interests in the property. It could in no way affect the interests of the judgment debtors, Alvin Speckels and Gustav Speckels. Those parts of the judgment determining and adjudicating their interests have become final. If, however, the interests of these parties, or of Alvin Speckels, should, for any reason, be adverse to the interest of appellants, on this appeal, the failure to include them as obligees in the appeal bond is not jurisdictional. Hugo v. Seffel, 92 Tex. 414, 49 S.W. 369; Williams v. Wiley, 96 Tex. 148, 71 S.W. 12; Kolp v. Shrader, Tex.Civ.App., 168 S.W. 464; Pillow v. McLean, 126 Tex. 349, 88 S.W.2d 702.
Since the enactment of General Laws 1892, 1st C.S., p. 32, § 39, Art. 1840, Vernon's Ann.Civ.St., such defects may be cured, and on proper motion timely made the appellate court will order the appellant to file a proper bond, and upon his failure to do so within the time prescribed, will dismiss the appeal. First Nat. Bank of Decatur v. Preston Nat. Bank, 85 Tex. 560, 22 S.W. 579; Appel v. Childress, 53 Tex.Civ.App. 607, 116 S.W. 129; Roberts v. Stoneham, Tex.Civ.App., 31 S.W.2d 856; Hart v. Estelle, Tex.Civ.App., 34 S.W.2d 665, affirmed Tex.Com.App., 55 S.W.2d 510; Teas v. Swearingen, Tex.Civ.App., 101 S. W.2d 334; Carter v. Price, Tex.Civ.App., 145 S.W.2d 291.
Appellee has filed no motion to dismiss the appeal in this court because of this defect.
Rule 430, of the new Rules of Civil Procedure, expressly provides for the filing of such a motion. Prior to the effective date of these rules, under Rule 8, of the rules governing Courts of Civil Appeals, unless such motion was filed within thirty days after the filing of the transcript in the Court of Civil Appeals, such defect was considered as waived. Appellee was governed by the rules in effect prior to the adoption of the new rules, and having failed to file such motion within the...
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