United States v. Rose
Decision Date | 02 February 1933 |
Docket Number | No. 2762.,2762. |
Citation | 57 S.W.2d 350 |
Parties | UNITED STATES v. ROSE.<SMALL><SUP>*</SUP></SMALL> |
Court | Texas Court of Appeals |
C. W. Johnson, Jr., U. S. Dist. Atty., of Fort Worth, and Eric Eades, Chief Atty., Veterans' Administration, of Dallas, and John W. Beveridge, Asst. U. S. Dist. Atty., of Fort Worth, for the United States.
J. Cleo Thompson, of Dallas, for defendant in error.
The United States of America prosecutes this writ of error from a judgment of the district court of Dallas county.
The cost bond upon the writ of error is in due form. The plaintiff in error's signature to the bond was affixed "By A. M. Mood, Assistant United States District Attorney."
Defendant in error moves to dismiss for want of a sufficient bond; the ground of the motion being that there is no act of Congress granting authority to an assistant United States district attorney to execute such a bond and thereby bind the United States on the same. It has been often held that a bond upon writ of error or appeal is good though signed by the sureties only.
Some of the cases so holding are Shelton v. Wade, 4 Tex. 148, 51 Am. Dec. 722; Bridges v. Cundiff, 45 Tex. 437; Palmer v. Spandenberg (Tex. Civ. App.) 108 S. W. 477; and Duller v. McNeill (Tex. Civ. App.) 161 S. W. 45.
Since plaintiff in error's signature to the bond is not necessary, it follows that it is immaterial whether the assistant United States district attorney was authorized to affix its signature to such bond. The motion is overruled.
This proceeding originated in the probate court. The controversy is over the proper distribution of a fund belonging to the estate of George H. Rose, a deceased soldier. The fund is the proceeds of a war risk insurance policy. The judgment awarded the fund to the defendant in error, the surviving wife of the deceased.
Briefly stated, the pleading of the plaintiff in error alleges the following:
George H. Rose was a soldier during the World War, and his mother was the designated beneficiary of the policy. On October 15, 1918, Rose died intestate. The monthly installments payable upon the policy were paid to the mother until her death. Thereafter plaintiff in error made payments totaling $4,485 to two sisters of the deceased soldier under the belief and upon the representation that they were the only heirs at law of the soldier. Thereafter defendant in error, Bennie Lee Rose, filed claim against the government for all the proceeds of the insurance policy and thereafter qualified as administratrix of the estate of the soldier and as such sued plaintiff in error in the United States District Court and obtained judgment for $8,602, which sum is now in her hands as administratrix.
In said suit plaintiff in error recovered judgment against the two sisters for the sums previously paid to them and said sisters have assigned to plaintiff in error their interest in the estate of the deceased soldier. At the time of his death, the soldier was a resident of Oklahoma, and left surviving him his mother and said two sisters as his only heirs. The mother died intestate on June 20, 1922, leaving as her only heirs the plaintiff in error's assignors. That under the laws of the United States and Oklahoma the surviving sisters of Geo. H. Rose are entitled to one-half of the fund in the hands of the administratrix. That under the law of Oklahoma the surviving wife of Rose was entitled to one-half of the fund and the other one-half would descend to and vest in the assignors of plaintiff in error as the heirs of the mother.
The prayer was that the administratrix be required to pay one-half of the fund to plaintiff in error.
The pleadings of defendant set up that the policy was issued to Rose while he was married to her, the premiums paid by him during coverture out of his monthly pay as a soldier, and she claimed the entire fund as the surviving wife under the law of Oklahoma.
In Singleton v. Cheek, 284 U. S. 493, 52 S. Ct. 41, 76 L. Ed. 419, 81 A. L. R. 923, the court, in referring to the Act of March 4, 1925, § 14, section 303 of the World War Veterans' Act of 1924 (38 USCA § 514), said: See, also, Battaglia v. Battaglia (Tex. Civ. App.) 290 S. W. 296, and Turner v. Thomas (Tex. Civ. App.) 30 S.W.(2d) 558.
It is thus apparent from the pleadings that the question presented is controlled by the law of descent and distribution of the state of Oklahoma.
The courts of this state cannot take judicial notice of the law of Oklahoma. Such law must be pleaded and proven as facts. This is elementary.
There appears in the clerk's transcript a stipulation signed by counsel, dated August 17, 1931, and filed prior to the trial. This stipulation agrees to certain facts.
Another agreement appears in the transcript filed some time subsequent to the trial. This agreement recites:
That the stipulation filed "on August 17th, 1931, is a full, true and correct statement of the facts adduced on the trial of this cause and constitutes a statement of all the material facts in this proceeding in error to the honorable Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, sitting at Dallas, Texas, with the following additions:
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