Webb v. Reynolds

• Decision Date: 15 January 1919
• Docket Number: (No. 20-2614.)
• Citation: 207 S.W. 914
• Parties: WEBB et al. v. REYNOLDS.
• Court: Texas Supreme Court

207 S.W. 914

WEBB et al. v. REYNOLDS.

(No. 20-2614.)

Commission of Appeals of Texas, Section B.

January 15, 1919.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by B. F. Reynolds against S. Webb and others. From a judgment of the Court of Civil Appeals, Second District (160 S. W. 152), affirming the trial court's judgment for plaintiff on appeal by defendants Webb and Hill, they bring error. Reversed, and cause remanded to district court for new trial.

A. A. Clark and J. A. King, both of Albany, and R. L. Allen, of Waco, for plaintiffs in error.

B. F. Thorp, of Throckmorton, and I. W. Stephens, of Ft. Worth, for defendant in error.

McCLENDON, J.

B. F. Reynolds, claiming to be the owner by assignment from the administrator of Laura G. H. Torrence of note No. 2 of a series of four promissory vendor's lien notes, brought suit to recover the amount of note No. 2 and for foreclosure against S. Webb and L. H. Hill, makers, W. H. Stephens, owner of the other three notes of the series, the First National Bank of Albany, depository of note No. 2, under an escrow agreement between the administrator and Hill, one of the makers, and others, alleged to claim some interest in the land. The defendants last referred to were dismissed from the suit. Plaintiff recovered judgment against all remaining defendants. Webb and Hill alone appealed, and the Court of Civil Appeals (Second District), by a divided court, affirmed the judgment of the trial court. 160 S. W. 152.

We have concluded that the evidence is not sufficient to show ownership of note No. 2 in the plaintiff, and that, on that account, the cause should be remanded to the trial court for a new trial. We shall therefore only state such matters of pleading and evidence as seem to us essential to render intelligible our decision in this regard. For a further statement of the case we refer to the opinion of the Court of Civil Appeals.

The regular district judge was disqualified, and at various times other judges had made orders in the case. The trial was had before a special judge, elected by the bar in the absence of the judge of the district. The defendants made objection to this election, and upon being overruled in these objections withdrew, with their counsel, from the courtroom, in the belief that the election was void, and that further participation by them in the proceedings would effect a waiver of their objections. Thereupon the judge entered a judgment by default against the bank, requiring it to produce in court note No. 2 and, as to the other defendants, proceeded to try the case, rendering judgment for the plaintiff as prayed for.

There is a statement of facts approved by the judge which is signed by counsel for plaintiff and defendants. Webb and Hill filed motion for new trial urging, among other grounds, that there was no competent evidence showing that the plaintiff was the owner of the note and entitled to maintain the suit. When the defendants declined to recognize his authority and withdrew from the courtroom the judge treated this action as an abandonment of their defense, but, instead of entering judgment by default against them proceeded to hear evidence and try the case. We have reached the conclusion that under all the circumstances apparent from the record this judgment must be treated as a judgment on trial, and not as a judgment by default. The record shows that the defendants, Webb and Hill, were in court with answers filed and by attorneys right up to the time of trial of the case, and that they withdrew from the courtroom upon the belief that the election of the special judge was void, and that further participation by them in the proceedings would be a waiver of their rights. That the court was advised of the existence of their pleadings is evident from the record. We think, therefore, that this case is distinguishable from those in which judgment by default is entered after the filing of answer, where the fact of the existence of such answer is not brought to the attention of the court, and that it comes within the rule announced in Tally v. Thorn, 35 Tex. 727. In that case, which was a suit in trespass to try title, it was held that, the judgment itself showing that the defendant had on file an answer which was called to the attention of the court, it was error to render judgment by default and it was necessary, in order to maintain the judgment, for the plaintiff to prove his title. In the present case, whether the defendants were correct or not in withdrawing from the courtroom, we do not think that such withdrawal, under the circumstances, amounted to an abandonment of their pleadings. The right of plaintiff to bring the suit was raised by special exception, and immediately after the trial was again urged in a motion for new trial.

Plaintiff's first amended petition, upon which he went to trial, alleges: The conveyance of the land by Laura Torrence to Webb and Hill; the execution of the four vendor's lien notes; the death of Laura Torrence in Kentucky, where she had lived; the appointment of A. C. Hensley of Woodford, Ky., as administrator of her estate; "that all of said notes were transferred to the defendant W. H. Stephens by A. C. Hensley, administrator aforesaid, and that said defendant W. H. Stephens paid in full notes Nos. 1, 3, and 4 of said series, and the said defendant Stephens is now the legal owner and holder of said notes, Nos. 1, 3, and 4 of said series;" that note No. 2 was by agreement between the administrator and Webb deposited with the defendant bank in trust to be held until a claimed shortage in the land was determined, which agreement was also deposited with the bank. The agreement between Hill and the administrator was copied in full in the petition.

The petition further alleges certain facts as constituting a breach of this agreement on the part of Hill, and that the administrator had sold and conveyed to plaintiff, for a valuable consideration, said note No. 2, also all of the rights, choses in action, liens, and all other rights that said estate of Laura G. H. Torrence had in said note No. 2. It is further alleged that plaintiff acted as agent for the administrator in making the contract.

The answer of Webb and Hill, among other things, contains a special exception to the petition on the ground that it showed that plaintiff was not the owner of or entitled to sue on the note, and a general denial. The other matters in the answer are not pertinent to our disposition of the case.

Article 3480, Rev. St. 1911, provides:

"No sale of any property belonging to an estate shall be made by an executor or administrator without an order of the court authorizing the sale."

In Browne v. Fidelity & Deposit Co., 98 Tex. 55, 80 S. W. 593, it was held that the term "any property" in this statute embraces promissory notes as well as all other kinds of property, and that an assignment of a note is a sale of it which passes the title to the assignee if lawfully made. It is clear, therefore, that in order to establish ownership in the plaintiff there must have been a valid order of court, authorizing the administrator to sell the note. In the absence of proof to the contrary, it will be presumed that the laws of Kentucky in this regard are the same as the laws of Texas.

The only evidence in the statement of facts upon this matter is the testimony of plaintiff in the following language: "I am the owner of the note sued on." In view of plaintiff's own pleading, which affirmatively shows that the note was the property of the estate; that the administrator was appointed in Kentucky; that the note at the time of the trial was in possession of the bank under an escrow agreement between one of the owners and the administrator — it appears that in order to constitute plaintiff the owner of the note there must have been an order of the probate court, authorizing the sale or assignment by the administrator to him. The burden of proof was on the plaintiff to establish his right to sue; and, where his own pleadings show that that right was dependent on an order of court, we think it incumbent upon him to show by some competent testimony that...