Webb v. Reynolds

• Decision Date: 05 July 1913
• Citation: 160 S.W. 152
• Parties: WEBB et al. v. REYNOLDS.
• Court: Texas Court of Appeals

160 S.W. 152

WEBB et al. v. REYNOLDS.

Court of Civil Appeals of Texas. Ft. Worth.

July 5, 1913.

Rehearing Denied October 18, 1913.

Appeal from District Court, Shackelford County; R. B. Humphrey, Special Judge.

Action by B. F. Reynolds against S. Webb and others. From a judgment for plaintiff, defendants appeal. Affirmed.

A. A. Clarke, J. A. King, and R. L. Allen, all of Albany, for appellants. B. F. Thorp, of Throckmorton, and Stephens & Miller, of Ft. Worth, for appellee.

DUNKLIN, J. S.

Webb and L. H. Hill have appealed from a judgment in favor of B. F. Reynolds for the sum of $654.68 with foreclosure of vendor's lien on certain land. The suit was upon a promissory note executed by appellants in favor of Laura G. H. Torrence as a part of the consideration for a tract of land conveyed to appellants by the payee and indorsed to W. H. Stevens without recourse by A. C. Hensley, "administrator of the estate of L. G. H. Torrence, deceased." The note was one of a series of vendor's lien notes executed by Webb and Hill to the payee mentioned, who contemporaneously therewith conveyed to the makers the land upon which a foreclosure was sought. B. F. Reynolds, the plaintiff in the case, alleged in his petition that he had acquired the notes from the indorsee Stevens; that all of the notes of the series had been paid except the one in suit; that by agreement between Hensley, the administrator, and defendant S. Webb the note in controversy was deposited in the First National Bank of Albany to be held by the bank in trust until the amount of shortage claimed by Webb in the land conveyed should be determined and that when determined the note should be credited therefor. The alleged agreement was in writing, signed by the administrator, reciting that Webb had acquired all interest Hill owned in the land, and that since the date of the deed to Webb and Hill it had been discovered that the tract conveyed contained less than the 320 acres warranted by the vendor, and the agreement was made an exhibit to the petition. This agreement further stipulated that no demand should be made for payment of the note in controversy until the amount of such shortage, if any, should be determined. Plaintiff alleged further that the administrator had on divers occasions endeavored to induce Webb, who is now the sole owner of the land, to ascertain the amount of shortage claimed by him and had offered to pay all expenses necessary to determine the boundary lines between the lands conveyed and other adjoining tracts, but that these offers had been refused by Webb, and that by such refusal he had breached the contract. It was further alleged in plaintiff's petition that that agreement was entirely for the accommodation of defendants and without any consideration to support it; that the administrator did not know of any shortage in the land and did not believe that there was any. By supplemental petition filed subsequently to the answer of Webb and Hill, this plea of failure of consideration was repeated and duly verified by plaintiff.

To this petition defendants addressed four special exceptions: First, that it did not sufficiently appear from the petition that plaintiff was the owner of the note; second, that the petition contains a plea of failure of consideration of the contract attached thereto and that such plea was not verified as required by law; third, that the petition did not show that the note sued on was due; and, fourth, that the suit was premature in that the petition contained no allegation that the amount of shortage admitted in the contract to exist had ever been ascertained and contained no showing that it was the duty of defendant Webb to ascertain that shortage rather than the duty of the plaintiff. Defendants further pleaded specially that the shortage in the tract of land above mentioned was due to encroachments made upon the tract by adjoining landowners who were claiming portions of it adversely. All of defendant's exceptions were sustained by Hon. Cullen C. Higgins, judge of the Thirty-Ninth judicial district and acting judge of the Forty-Second judicial district, in which district this suit was pending; Hon. Thos. L. Blanton, the regular judge of the Forty-Second district, having recused himself on account of relation to some of the parties and having exchanged districts with Hon. Cullen C. Higgins. When these exceptions were sustained, plaintiff declined to amend, whereupon the suit was dismissed. Plaintiff then prosecuted an appeal to this court, which was dismissed for want of final judgment as the same failed to dispose of some of the parties made defendants in the suit. A mandate was then issued from this court announcing its decision. Thereafter plaintiff filed his first amended original petition, which was substantially to the same effect as his original petition. Appellants then filed a motion to dismiss the amended petition upon the ground that the order of Judge Higgins sustaining the special exceptions had not been set aside but was still in full force and effect. This motion was presented to Judge Thomas, who was then presiding judge of the court, and was by said judge overruled, to which ruling appellants excepted. Thereupon defendants filed their first amended original answer urging the same exceptions to the amended original petition as had been formerly sustained and further excepting to the petition on the ground that plaintiff, having elected to stand upon the previous order sustaining the exceptions and having prosecuted an appeal therefrom, was bound by such election. These exceptions were presented to Judge Thomas, who reserved his decision thereon, appointed certain surveyors to survey the tract of land in controversy in order to ascertain the shortage claimed, and continued the case until the following term. At the next succeeding term, Hon. J. H. Calhoun by agreement of the parties acted as judge of the court to try the case. Judge Calhoun then overruled all the exceptions contained in the defendants' first amended original answer except the one urging the premature institution of the suit and reserved his decision upon that. This judge also appointed surveyors to survey out the land looking to a determination of the amount of shortage and continued the suit until the following term. No report of any survey of the land by any of the surveyors appointed was ever filed. At the next succeeding term of the court the case was tried before Hon. R. B. Humphrey, as special judge, and the judgment from which this appeal is prosecuted was rendered upon that trial; Judge Humphrey having been elected as special judge by the lawyers present in the court. The record contains no formal order by any of the different judges who sat in the case specifically vacating the order made by Judge Higgins sustaining the four special exceptions noted already. Nor does the record contain any nunc pro tunc order showing a disposition of all the parties at the time the suit was dismissed by Judge Higgins.

It appears that counsel for appellants questioned the validity of the election of Judge Humphrey; that for this reason they refused to appear when the case was called for trial by him; and that no one appeared upon the trial but plaintiff and his counsel. Hence appellants did not invoke a ruling by Judge Humphrey upon any of the exceptions contained in their amended answer and introduced no evidence upon the trial and objected to none introduced by plaintiff; but thereafter they filed a motion in arrest of the judgment upon grounds which will be hereinafter noted.

By the first assignment appellants insist that the former judgment from which the former appeal was prosecuted was in fact a final judgment, but that by an oversight of the draftsman the judgment entered omitted any disposition of the rights of some of the parties defendants; that after the termination of that appeal plaintiff failed to take any steps to procure an order nunc pro tunc making said judgment final and thereby bound himself to an election to abide by the order of Judge Higgins sustaining the defendants' special exceptions to plaintiff's petition which has never been vacated. Predicated upon these contentions it is insisted that Judge Thomas erred in overruling defendants' motion to dismiss plaintiff's first amended original petition filed after the former appeal was dismissed, and that Judge Humphrey erred in overruling defendants' motion in arrest of judgment, in which motion the same facts were urged as one of the grounds for arresting the judgment rendered by Judge Humphrey.

The record before us fails to show that when Judge Higgins entered the order of dismissal he in fact disposed of all the parties to the suit; hence it does not appear that plaintiff could have procured the entry of a nunc pro tunc order such as mentioned above. In the absence of any showing that a final judgment had been rendered, no error appears in the actions of Judges Thomas and Humphrey in treating the order of Judge Higgins sustaining defendants' special exceptions as interlocutory only, and we must so consider it here. Their orders must be considered from the same viewpoint as if Judge Higgins had continued to preside in the court and had made the orders himself. The former order of Judge Higgins being interlocutory only, there was nothing to prevent him or either of the succeeding judges from vacating it, and an unsuccessful appeal from that order could not estop plaintiff from afterwards invoking a vacation of it.

While Judge Humphrey did not specifically set aside that order, yet his failure so to do would not be reversible error, since the judgment rendered by him necessarily had that effect, and no assignment is presented challenging the correctness of his action in thus overruling appellants' special exceptions to plaintiff's petition upon the merits of those exceptions; the only point made being the alleged estoppel against plaintiff noted above....