Thomas v. Goldberg

• Decision Date: 08 April 1926
• Docket Number: (No. 334.)
• Citation: 283 S.W. 230
• Parties: THOMAS v. GOLDBERG et al.
• Court: Texas Court of Appeals

283 S.W. 230

THOMAS v. GOLDBERG et al.

(No. 334.)

Court of Civil Appeals of Texas. Waco.

April 8, 1926.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by Ida Mae Goldberg and another against Morris Thomas and others. From an order overruling the named defendant's motion for new trial, after default judgment against him, he appeals. Judgment affirmed.

Witt, Terrell & Witt, of Waco, for appellant.

James P. Alexander, Alva Bryan, W. L. Eason, Spell, Naman & Penland, and W. R. Poage, all of Waco, for appellees.

STANFORD, J.

Mary Goldberg and husband, J. Goldberg, lived in Waco, Tex., for many years. After the death of her husband, Mary Goldberg, while still living in Waco, Tex., on May 26, 1923, made a will bequeathing to her nieces, Ida Mae, Sophie, and Estelle Goldberg, children of H. D. and Ray Goldberg, $1,000 each; also to Mrs. Jacob White of Albany, N. Y., a sister, $1,000; also to Adele Schwartz and Esther Grand of Kerem, Jerusalem, her sisters, $1,000 each; also made bequests to several religious and charitable institutions. J. Berkman of Waco, Tex., was named as executor of said will. Her property consisted principally of vendor lien notes and others notes, all of which, together with said will, were left in the possession of J. Berkman, the executor named in the will, and Mrs. Goldberg started on her way to Jerusalem, going by way of New York. While in New York she married Morris Thomas, and on or about February 15, 1924, she died at Albany in the state of New York, being at the time of her death the wife of Morris Thomas. The will was duly probated in the county court of McLennan county, inventory and appraisement returned, and J. Berkman qualified as executor.

This suit was instituted by Ray Goldberg as guardian of the person and estate of Sophie and Estelle Goldberg, minors, and Ida Mae Goldberg, in her individual capacity, against J. Berkman, as executor of the estate of Mary Goldberg Thomas, deceased, and Mrs. Jacob White and others, as legatees in said will of the said Mary Goldberg Thomas, and also against Morris Thomas, her surviving husband, who was claiming some interest in said estate situated in Texas. The suit was to determine the respective rights of the parties and for partition. All of the nonresidents, including Morris Thomas, were cited by publication. The suit was made returnable to the July term of the Nineteenth district court, beginning July 6, 1925. The case was set for trial September 8th. Morris Thomas had entered his appearance in said cause, but failed to appear in person or by attorney when the case was called and tried on September 8, 1925. Morris Thomas filed a motion for a new trial, and on October 30, 1925, filed an amended motion for new trial and on the same day appellees filed an answer to said amended motion for new trial. The court heard evidence on appellant's amended motion for new trial and appellees' reply thereto, and overruled appellant's said motion on October 30, 1925, and appellant, Morris Thomas, assigns error to the action of the court in refusing to grant him a new trial.

Opinion.

As above stated, the suit was filed May 29, 1925, returnable to the July term of court, beginning July 6, 1925. Service of citation was duly had on appellant, Morris Thomas, by publication. The record indicates that appellant had employed attorneys in Albany, N. Y., to represent him in reference to his claim to the property left by his deceased wife, Mary Goldberg Thomas, in Albany, N. Y., consisting of about $1,100 cash in a bank there; also jewelry of the value of about $1,000, as well as his claim to the estate of said deceased in Texas; and that said attorneys were in correspondence with an attorney in Waco before this suit was filed, as early as March 7, 1925, with a view of recovering appellant's claimed interest in the Texas property, and said correspondence with this attorney continued until June 20, 1925, the employment of said Waco attorney finally being refused because he demanded a retainer fee of $50. The record clearly shows that on June 19, 1925, appellant and his New York attorneys had actual knowledge of the pendency of this suit, and were familiar with the status of the estate in Texas, and on said date began correspondence with another attorney in Waco with view of employing him to represent appellant in this state, and did employ said attorney, and said attorney filed a plea to the jurisdiction, under the advice and at the request of the New York attorneys. On July 25, 1925, appellant's said Waco attorney notified appellant and his New York attorneys that the court had recessed for the summer vacation until September 1st, so they would have time to prepare for trial, and in the same letter advised them that he desired a fee of $100 to cover costs, expenses, and a small retainer, and that he was drawing a draft on them for said amount. Payment of this draft was refused. On August 18th said Waco attorney again wrote appellant's New York attorneys, advising them the court would reconvene on September 7th, and the case would be set for trial then. Appellant and his New York attorneys made no reply to either of these letters of July 25th or August 18th, until August 24th, when they replied, severaly criticizing their Waco attorney, and informing him that they did not propose to send him a fee for his services; that his fee should be paid out of a recovery in the case, etc. Upon the receipt of this letter said Waco attorney, on August 29th, informed said New York attorneys that he would no longer represent appellant in the case, and advised said New York attorneys to at once, as they had suggested, get other counsel in Waco. This letter was received by the New...