Weir v. King

• Decision Date: 30 October 1942
• Docket Number: No. 13302.,13302.
• Citation: 166 S.W.2d 187
• Parties: WEIR v. KING.
• Court: Texas Court of Appeals

166 S.W.2d 187

WEIR v. KING.

No. 13302.

Court of Civil Appeals of Texas. Dallas.

October 30, 1942.

Rehearing Denied November 27, 1942.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Receivership suit by H. H. Franklin and others against the Big Indian Syndicate and others, wherein A. A. King intervened. Thereafter Mrs. Cleone Weir, divorced wife of A. A. King, also intervened, claiming that if the Big Indian Syndicate was indebted to A. A. King in any sum, such sum constituted part of the community estate of the intervenors, one half of which Mrs. Cleone Weir claimed under the terms of the property settlement between A. A. King and Mrs. Cleone Weir prior to their divorce. From an order denying Mrs. Cleone Weir's intervention, she appeals.

Reversed and rendered.

Roger Lewis, Hughes & Monroe, and Albert S. Reagan, all of Dallas, for appellant.

J. Frank Wilson and J. Lee Zumwalt, both of Dallas, for appellee.

LOONEY, Justice.

The appellant, Mrs. Cleone Weir, and the appellee, A. A. King, were married in August, 1935, separated in October, 1940, and divorced on April 9, 1941. Prior to the divorce, and in contemplation thereof, the parties entered into a property settlement agreement which was made a part of the divorce decree, and appellant was permitted to resume her former name, that is, Cleone Weir.

About six months after the divorce, appellee filed an intervention in the receivership suit of H. H. Franklin et al. v. Big Indian Syndicate et al., claiming that he should be allowed a bonus for having advanced $1,153 toward the expenses of prosecuting a certain suit styled Big Indian Syndicate v. Grogan et al. in the U. S. District Court at Shreveport, La., which resulted in a recovery of $74,000. On October 13, 1941, before appellee's intervention was acted upon, appellant was also permitted to intervene, in which she claimed that, if the Big Indian Syndicate was indebted to appellee in any sum as bonus, by reason of the facts alleged in his plea of intervention, same constituted part of and belonged to the community estate of appellant and appellee, one-half of which appellant claimed; alleging that in the property settlement between the parties prior to the divorce, the claim asserted by appellee in his plea of intervention was neither disclosed, considered, nor taken into consideration; wherefore, appellant prayed that in the event appellee's claim should be allowed, one-half thereof be awarded to appellant as her community share. Appellee's answer contained a general demurrer, general denial, and a special plea to the effect that appellant was precluded by the property settlement, that became a part of the divorce decree, from asserting any claim to or interest in the cause of action against the receivership, as alleged by the appellee.

On December 1, 1941, the court below allowed appellee's claim in the sum of $1,512.34, as a bonus for the money put up by him for the benefit of the receivership estate, and the receiver was authorized and directed to pay appellee that sum out of funds then on hand, to be charged against the holders or owners of shares or interests in the receivership estate. The facts show that the claim belonged to and was an asset of the community estate of the parties. On December 5, 1941, the court heard and denied appellant's intervention, decreeing that she take nothing by reason thereof; that appellee be discharged from any and all liability by reason of appellant's claim; to which she excepted, gave notice of and duly perfected this appeal.

One of the contentions urged in support of the judgment below is, that certain interested parties appealed from the order allowing the claim in question, hence, pending the appeal, appellant could not base a cause of action thereon. This contention is based on the doctrine that, pending an appeal, the judgment appealed from cannot be offered in evidence in support of a right or defense, or become the basis of a suit. See 26 Tex.Jur. p. 423, Sec. 574. This doctrine, in our opinion, has no application to the instant proceedings. Appellant's intervention is not based upon the judgment in question, and it is not necessary to the establishment of her cause of action against the appellee. The appeal in question (cause No. 13,297 on the docket of this court) was prosecuted by certain shareholders, representing 46½% interest in the Big Indian Syndicate receivership; they did not contend that the claim in question was improperly allowed, or excessive; in fact, no objection was urged to the claim; the contention being that, the court erred in making the claim a general charge against the estate, instead of against the interest of certain shareholders representing 53½% of said receivership estate. On the 16th inst., this court sustained this contention, reformed and rendered judgment in the following language: "Appellee King's judgment of $1,512.34 is therefore reformed so as to charge his total recovery against the aforesaid 53½ percentage of receivership assets only; wholly excluding therefrom appellants' 46½ per cent. interest in the estate, and it is so ordered."

Another contention in support of the judgment is, that the findings and conclusions filed by the trial judge, at the request of appellant, were not excepted to, therefore cannot be called in question on the appeal; hence the judgment should be affirmed. This contention is denied for the reason that, where, as in the instant case, the judgment was duly excepted to and the record contains a statement of facts, the appellant is permitted to attack the findings and conclusions of the court, although no specific exceptions were taken thereto. In support of this proposition, see Voight v. Mackle, 71 Tex. 78, 8 S.W. 623; Johnson v. Masterson Irr. Co., Tex.Civ.App., 217 S. W. 407; Reed v. Murphy, Tex.Civ.App., 276 S.W. 951; 3 Tex.Jur., p. 245, Sec. 162, and p. 594, Sec. 415.

The main contention in support of the judgment is that, in view of a separation and divorce, the parties entered into a property settlement agreement, which, being incorporated in and becoming a part of the divorce decree, is immune from collateral attack, hence the court below properly held same conclusive and binding upon the parties. It is undisputed that the claim in question did not enter into the settlement, was not scheduled on the inventory filed by appellee, was never mentioned by him, nor did he indicate any intention to assert the same in the future. It follows, we think, that the right to such claim as between the parties, was not put in issue or determined by the divorce decree.

The record discloses that appellee filed an...