Walsh v. Spencer
| Citation | 275 S.W.2d 220 |
| Decision Date | 20 October 1954 |
| Docket Number | No. 12714,12714 |
| Parties | Thomas J. WALSH, Jr., Appellant, v. Emory M. SPENCER, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
North, Blackmon & White and Luther E. Jones, Jr., Corpus Christi, Clark C. Wren, Rockport, for appellant.
Ward & Brown, Corpus Christi, for appellee.
This proceeding was instituted in the District Court of Aransas County by Emory M. Spencer, under the provisions of Art. 7345b, Vernon's Ann.Civ.Stats., Acts 1953, 53d Legislature, p. 391, Chapter 108, § 1, seeking to recover a certain excess fund in the amount of $3,806.69, which remained in the State Treasury after the payment of all expenses chargeable against the proceeds of a tax foreclosure sale. This fund was owned by the heirs of Thomas J. Walsh, Sr., deceased, and Spencer claimed that these heirs had assigned to him all of their rights in the fund and therefore he was entitled to recover the fund.
All of the heirs filed a disclaimer except Thomas J. Walsh, J., and the contest here was as to his interest in this fund.
The trial judge found that Emory M. Spencer was the assignee and was entitled to recover the entire excess fund of $3,806.69, including the one-fifth interest claimed by Thomas J. Walsh, Jr., and rendered judgment accordingly, from which judgment Thomas J. Walsh, Jr., has prosecuted this appeal.
Appellant contends that there is no evidence to warrant the court in finding that he had assigned his one-fifth interest in the excess fund to appellee. Appellee was desirous of securing for himself an assignment of this excess fund held by the State Treasurer of Texas and belonging to the five heirs of Thomas J. Walsh, Sr., deceased. To accomplish this he employed one N. B. Marye to procure these assignments for him. Assignments were procured from the other heirs, and no question is here raised as to these assignments. The only question being as to whether Marye secured an assignment from Thomas J. Walsh, Jr., who resided in Chicago. On June 15, 1953, appellant executed a deed conveying to appellee all of his interest in the land which had theretofore been sold for taxes and out of which foreclosure the excess fund herein involved had arisen. This deed was not sufficient to convey any interest that appellant had in the excess fund, because the land had already been sold and the excess fund deposited with the State Treasurer, and therefore it was no part of the real estate. Appellant's right to an interest in the fund had become a chose in action. Broadway v. Stone Tex.Com.App., 15 S.W.2d 230; Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561.
The deed being insufficient as an assignment of appellant's interest in the excess fund, we come to the consideration of whether appellant executed an alleged assignment of his interest in the excess fund to appellee. The trial judge found that appellant did execute such an assignment, and set it out in full in his Finding of Fact Number 4, but we have been unable to find any such instrument in the Statement of Facts. Appellant has challenged appellee to point out where in the statement of facts such assignment or description thereof may be found. This challenge has not been accepted by appellee, and as we find no such assignment in the record, we must conclude that it was not introduced in evidence.
The record shows that appellee did send to appellant a check in the sum of $337.50, which he cashed and retained the proceeds thereof, but this fact does not show that appellant assigned his interest in the excess fund. Appellant has tendered this sum of $337.50 into court.
The record further shows that Marye called Thomas J. Walsh, Jr., by long distance telephone, and this conversation was to the effect that Walsh had received an instrument from John Walsh of Houston, Texas, and had signed and returned it, but the record fails to show that this instrument was an assignment of appellant's interest in the excess fund.
The judgment of the trial court will be reversed insofar as it awards the one-fifth interest in the excess fund claimed by appellant to appellee, but the judgment in all other respects will be affirmed.
Judgment will here be rendered that appellant recover a one-fifth interest in the excess fund, amounting to the sum of $761.34.
The Comptroller of Public Accounts of Texas will issue his warrant on the Treasury of this State against such trust funds for the payment of the sum of $3,045.35 to appellee, Emory M. Spencer, and a similar warrant in the sum of $761.34, to appellant, Thomas J. Walsh, Jr.
What we have decided above makes it unnecessary for us to pass upon the question of whether appellant was improperly denied a trial before a jury.
Our original opinion herein has been withdrawn and this opinion substituted for it.
Affirmed in part, reversed and rendered in part.
On Motion for Rehearing.
Appellee has filed a motion for rehearing herein, among other things, contending that this Court was in error in reversing and rendering judgment, and that in any event we should have remanded the cause for a new trial.
We have concluded that inasmuch as this case is not fully developed, the ends of justice will be best served by a remanding in part of the cause rather than a rendition of judgment here. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458; Faulkner v. Reed, Tex.Com.App., 241 S.W. 1002; Long v. Long, 133 Tex. 96, 125 S.W.2d 1034.
Appellant has filed a second motion for rehearing asking that we re-tax the costs in the trial court. In view of the fact that the cause is to be remanded, we overrule this motion. The trial court can adjudge the costs in keeping with the result of the new trial.
It is true that Art. 1, § 15, of our Constitution, Vernon's Ann.St., only guarantees a trial by jury if one was provided for by common law, or by a statute in effect at the time of the adoption of our present Constitution in 1876. Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227; Burckhalter v. Conyer, Tex.Com.App., 9 S.W.2d 1029; Pittman v. Byars, 51 Tex.Civ.App. 83, 112 S.W. 102; Foster v. Foster, Tex.Civ.App., 230 S.W. 1064. Art. 1, § 15, supra, provides, among other things, that 'The right of trial by jury shall remain inviolate.' This provision and all similar provisions to be found in the Federal Constitution and in the...
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Bullard v. State
...White v. White, 108 Tex. 570, 196 S.W. 508 (1917); Johnson v. State, 267 S.W. 1057 (Tex.Civ.App.1924), err. ref.; Walsh v. Spencer, 275 S.W.2d 220 (Tex.Civ.App.1955), reh. den.; Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.1951), err. ref.; Huguley v. Board of Adjustment of City of Dallas,......
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Hatten v. City of Houston, 14255
...a 'cause', that portion of Art. 717m providing that all issues of fact be determined by the judge is unconstitutional. In Walsh v. Spencer, Tex.Civ.App., 275 S.W.2d 220, the court 'However, the provisions of Art. 5, Sec. 10, of our Constitution are much broader than those of Art. 1, Sec. 15......
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