Union Bank & Trust Co. of Fort Worth v. Smith, 14477.

• Decision Date: 06 November 1942
• Docket Number: No. 14477.,14477.
• Citation: 166 S.W.2d 928
• Parties: UNION BANK & TRUST CO. OF FORT WORTH et al. v. SMITH et al.
• Court: Texas Court of Appeals

Page 928

166 S.W.2d 928

UNION BANK & TRUST CO. OF FORT WORTH et al. v. SMITH et al.

No. 14477.

Court of Civil Appeals of Texas. Fort Worth.

November 6, 1942.

Original proceeding by the Union Bank & Trust Company of Fort Worth and others against Carolee Smith and others for a writ of prohibition prohibiting prosecution of three pending suits filed by respondents.

Writ granted.

Samuels, Foster, Brown & McGee, G. L. Robertson, Lightfoot, Robertson & Gano, Morgan Bryan, and J. R. O'Daniel, all of Fort Worth, for relators.

Claude Spratling, of Fort Worth, for respondents.

SPEER, Justice.

This is an original application for a writ of prohibition, filed by relators Union Bank & Trust Company, Sloan Lumber Company corporations, W. W. Dickinson and J. E. Dickinson, independent executors of the estate of A. D. Dickinson, deceased, Lora Gilcrist, joined by her husband, C. F. Gilcrist, Morgan Bryan, Jo S. Hubbard and W. H. Tolbert, receiver formerly appointed by the 67th District Court in a suit pending in that court, out of which this controversy grew, against respondents Carolee Smith and husband, C. W. Smith, Charles G. Hodges and Helen Simmons, in their individual capacities and as next friends for Mary Jean Simmons and June Simmons, minors, Claude Spratling, Walter L. Morris, Judge of the 67th District Court of Tarrant County, and Dave Miller, Judge of the County Court of Tarrant County, Texas.

Claude Spratling, mentioned above, is shown to be the attorney for all of the above named respondents, except Walter L. Morris and Dave Miller, Judges of the 67th District and County Court, respectively. It will be more convenient and a conservation of time hereinafter to refer to all of those named as respondents, as such, without including Spratling, Morris and Miller. However, at the proper time and place they will be referred to by names.

In support of their application, relators allege that Union Bank & Trust Co. had previously obtained a judgment for debt against Helen Gardner and her husband, W. Scott Gardner, in the 67th District Court of Tarrant County, with foreclosure of deed of trust lien on certain real estate, as against the Gardners, all of respondents except Carolee Smith and husband, and in part against all other named relators; that said other relators were named in said original suit as defendants, and upon trial some of them established first and prior liens on certain of the real estate, and that the lien of Union Bank & Trust Co. was second and inferior thereto; that the judgment of the trial court in said cause was affirmed by this court and application for writ of error was refused for want of merit by the Supreme Court. Opinion of affirmance is shown in Gardner et al. v. Union Bank & Trust Co. et al., Tex.Civ.App., 159 S.W.2d 932.

Allegations are made that relators acquired certain fully adjudicated rights under and by virtue of the judgment referred to and that respondents have filed three suits which are now pending, seeking to deprive relators of their rights so acquired. The petition has attached to it as exhibits, respondents' petitions in the respective cases and of necessity is lengthy, consisting of 248 pages printed and bound in book form.

Some of the hectic vicissitudes of this controversy are reflected by our opinion upon last appeal, 159 S.W.2d 932, and they need not be repeated here.

The suits filed by respondents, the prosecution of which relators ask us to prohibit, for brevity, will be referred to by us as Nos. 1, 2 and 3.

No. 1 is in form of a Bill of Review in probate court of Tarrant County, filed by respondents, naming as defendants several persons and corporations which, to prevent repetitions, we shall divide into classes "A" and "B". Those referred to in Class "A" were parties to the original suit in 67th District Court, which was before us in the appeal last above cited, and those included by us in Class "B" were not parties to that suit. They are, (Class "A") Union Bank & Trust Co., Sloan Lumber Co., Emma Simmons, C. E. Simmons, Helen Gardner, W. Scott Gardner, John F. Dickinson and W. W. Dickinson, independent executors of the estate of A. D. Dickinson, deceased, Lora Gilcrist, S. F. Gilcrist, Jo S. Hubbard and Morgan Bryan. (Class "B") First National Bank of Fort Worth, Texas, Continental Casualty Co., National Surety Corporation, T. Oscar Vogel, individually and as administrator of the estate of Gertrude S. Wilson, G. L. Robertson, A. L. Hedeen, Dan E. Lydick, W. H. Tolbert, as receiver in the original suit, Sidney L. Samuels and Baylor Brown, administrator with will annexed of the estate of Gertrude S. Wilson, deceased. In the petition for Bill of Review it is alleged that Continental Casualty Co. is surety on Vogel's bond as administrator; that National Surety Corporation is surety on the bond of Helen Gardner and Emma Simmons, as temporary administratrices, and that G. L. Robertson and A. L. Hedeen are sureties on the sales bond executed by Vogel as administrator at the time he purportedly sold the real estate as such administrator to Helen Gardner.

The prayer in the petition for review asks a cancellation of six orders theretofore entered by the probate court authorizing Vogel, the administrator of the estate of Gertrude S. Wilson, to sell property of the estate to pay its debts and corresponding orders confirming reports of sales made by the administrator. Also to rescind and cancel other orders made by the court approving the final account of Helen Gardner and Emma Simmons as co-administratrices and discharging them and their bondsmen as such; an order approving the annual account of Vogel as administrator and subsequent orders approving his final account and his discharge, along with his bondsmen, as such; to rescind and cancel a previous order made approving the account of G. L. Robertson and that approving the account of T. Oscar Vogel, administrator, against the estate of Mrs. Wilson, deceased.

As ground for the relief sought respondents allege in varying forms, fraud, collusion, connivance, criminal acts, false swearing and failure of the permanent administrator, as well as the temporary co-administratrices, to report all funds coming into their respective hands, and failure of consideration relating to the claims of Robertson and Vogel. It is unnecessary for us to express any opinion here as to the sufficiency of the allegations relating to parties other than relators, and we purposely refrain from doing so.

It is the settled law of this state that probate courts have jurisdiction of estates such as that involved in the suit out of which this application grew. Since our opinion (159 S.W.2d 932) became final, the rules and principles there announced by us became the law applicable to this proceeding, insofar as the facts were involved. The appointment of T. Oscar Vogel as permanent administrator of the estate of Gertrude S. Wilson, deceased, was valid and proper. Indeed this is not questioned by respondents in their petition for Bill of Review; they do not attack the judgment appointing him, nor his qualifications. All proceedings had in the probate court relating to the estate were in rem; all judgments, orders and decrees entered therein were binding on everybody everywhere; obviously this includes the respondents in this case, and they stand charged with notice thereof. 21 Tex.Jur. p. 206, sec. 3; Moore v. Wooten, Tex.Com.App., 280 S.W. 742; Price v. Smith, Tex.Civ.App., 109 S.W.2d 1144, and cases cited at page 1147.

Respondents raise the question in this proceeding that they were not properly before the court in the foreclosure suit by Union Bank & Trust Co. against Helen Gardner et al., decided by us on appeal. Be that as it may, we think it immaterial in this controversy for the reason they were parties to the probate proceedings above referred to and it was the judgments there entered that affected their contingent interest in the estate of their grandmother, Gertrude S. Wilson. It was determined in the appeal before us that such title as was mortgaged to Union Bank & Trust Co. by Mrs. Gardner and husband and foreclosed by the bank was the one acquired by the Gardners from the administrator Vogel; this would necessarily mean that if the sales by the administrator to Mrs. Gardner were legal she could properly mortgage it to the bank and after foreclosure, a purchaser at a sale made thereunder would acquire that title. Moreover, it will be observed from our opinion that administration on the estate was proper and that a sale by the administrator under orders of the probate court for payment of debts was authorized by law. It also follows that respondents had not in fact inherited anything from Gertrude S. Wilson, deceased, for the reason their mothers, Mrs. Gardner and Mrs. Simmons, were living and were the only surviving children or their descendants of Mrs. Wilson.

Reference is made frequently in both the equitable Bill of Review and in suit No. 2, to be discussed later, to a will of Gertrude S. Wilson and respondents' rights thereunder, as well also it is frequently asserted that Emma Simmons had no interest in the estate when she mortgaged her interest to Union Bank & Trust Co., but in all this we have no concern for the reason, as we view this controversy, the administration was proper irrespective of the purported will, and Mrs. Simmons being one of Mrs. Wilson's daughters, she did have an interest in the estate, subject to the administration.

It is the general rule in this state that a Bill of Review must allege, (1) a valid excuse for not appearing at the trial, (2) a meritorious defense to the judgment entered, and in some instances it has been held that the bill must be such that the whole controversy can be tried and proper judgment entered, since cases will not be tried in piece-meal. 17 Tex.Jur., sec. 28, pp. 30, 31.

It seems to be the settled law of this state that although there is no statutory provision for the Bill...