Weston v. Van Meter

• Decision Date: 06 December 1956
• Docket Number: No. 6918,6918
• Citation: 297 S.W.2d 302
• Parties: Lillian Bridgwater WESTON et vir, Appellants, v. Edith VAN METER et al., Appellees.
• Court: Texas Court of Appeals

Page 302

297 S.W.2d 302

Lillian Bridgwater WESTON et vir, Appellants, v. Edith VAN METER et al., Appellees.

No. 6918.

Court of Civil Appeals of Texas, Texarkana.

Dec. 6, 1956.

Rehearing Denied Dec. 27, 1956.

Fred L. Williams, Jr., Angleton, Samuel C. Lipscomb, Beaumont, for appellant.

Hill, Brown, Kronzer & Abraham, J. Curtis Brown, W. James Kronzer, Houston, for appellee.

FANNING, Justice.

Lillian Bridgwater Weston and husband, C. L. Weston, sued Edith Van Meter and husband, J. B. Van Meter, Ettie Mae Falvey, a widow, Thomas Falvey, and Samuel J Lee, in trespass to try title for 43.13 acres of land in Brazoria County, Texas, and joined therewith a suit in the nature of an equitable bill of review and a direct attack to set aside an earlier judgment of the same district court entered more than two years (47 months) prior thereto upon service by publication upon appellant Lillian Bridgwater (Adock) Weston. Defendants moved the court in limine to prohibit plaintiffs from introducing and offering certain evidence, hereinafter more specifically referred to, which motion was granted by the trial court. Plaintiffs presented certain evidence on this bill of exception to the ruling of the trial court, announced that they could proceed no further and rested their case, at which time defendants also rested. The trial court entered a take-nothing judgment against plaintiffs and in favor of defendants. Plaintiffs have appealed.

On November 3, 1949, based upon service by publication on Lillian Bridgwater Adcock (then a feme sole and a non-resident of the State of Texas and being one and the same person as Lillian Bridgwater Weston) and her unknown spouse, their unknown heirs and legal representatives, the District Court of Brazoria County, Texas, entered judgment in trespass to try title in Cause No. 31,869, decreeing title to the 43.13 acres of land in question to be in Edith Van Meter as her separate property. The publication affidavit was in proper form and executed by appellee Samuel J. Lee, on September 9, 1949, and the citation by publication was duly made in accordance with law. Samuel J. Lee also made affidavit that he did not know and that plaintiffs in that suit did not know whether Lillian Bridgwater Adcock or any of the other unknown defendants, if any, were members of any branch of the military services of the United States of America, etc., and requested the trial court to appoint an attorney ad litem to represent said defendants. The trial court appointed an attorney ad litem to represent defendants and a hearing was had and a statement of facts in said cause was duly authenticated and filed in the cause. The record shows that Mrs. Van Meter and husband, prior to the service by publication, attempted to obtain personal service of non-resident notice as provided by Rule 108, Texas Rules of Civil Procedure, upon Lillian Bridgwater Adcock in the State of California, which citation was returned unserved by the sheriff of Los Angeles County, California. The statement of facts in the 1949 case clearly shows that the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of Lillian Bridgwater Adcock and of attempting to obtain service of nonresident notice was a matter then before the court for determination under Rule 109, T.R.C.P., and the court in entering judgment for Edith Van Meter in said cause necessarily determined the sufficiency of diligence in the matter with respect to the issuance of the citation by publication.

Appellants in seeking to set aside the 1949 judgment, alleged, among other things, that the affidavit of Samuel J. Lee was not made in 'good faith', that he did not exercise due diligence in ascertaining the whereabouts of Lillian Bridgwater Adcock (Weston), and that, in effect, some of the testimony introduced in support of the 1949 judgment on the merits was false and untrue.

In the trial of the case at bar, appellees, out of the presence of the jury, moved the trial court to prohibit and instruct counsel not to refer or mention, directly or indirectly, either (1) that Samuel J. Lee had not exercised due diligence in ascertaining the whereabouts of Lillian Bridgwater Adcock Weston, or (2) that the testimony of any of the witnesses in the original proceeding was false. The basis of appellees' motion was that in ordinary trespass to try title suits, unlike tax suits, attempts to set aside a judgment (in a publication case) more than two years after the entry thereof were in the nature of an equitable bill of review, and that an equitable bill of review can only be resorted to in the event the earlier judgment was procured by 'extrinsic' fraud. It was appellees' position that since the amendment to Rule 109, T.R.C.P., effective February 1, 1946, the issue of diligence is expressly made 'intrinsic' to the judgment.

At the time the motion in limine was presented, and upon several occasions during the argument thereof, counsel for appellants made it distinctly clear that they were not charging appellees with fraud, but based their case upon the contention that the court could and should inquire into the sufficiency of the diligence used by Mr. Lee prior to making his affidavit of September 9, 1949. In addition to expressly stating that they were not charging Mr. Lee with fraud, or actual knowledge of the whereabouts of Lillian Bridgwater Adcock Weston, her counsel expressly stated that appellants were only relying upon a contention of non-diligence. In this regard, immediately following the presentation of the motion, counsel for appellants read from previously prepared issues in his file, which he stated to be the only issues for jury consideration. To quote from the record, those issues read to the trial court were:

"Do you find from a preponderance of the evidence Samuel J. Lee failed to use due diligence,' and 'Do you find from a preponderance of the evidence that the property in this suit was purchased with the funds supplied by Mrs. Ellen Suit,' and those are the only two issues in the case. If the Court rules against us on the first issue, and says that we haven't raised an issue of fact, then this jury has no more concern with this lawsuit, we go to the Court of Civil Appeals; if the Court finds we have made an issue of fact of those two proposition, or even if he finds we have not raised the issue on the first one about the lack of diligence, we are out of Court, and the Court would have to instruct in favor of the defendants.' At another point counsel for appellant stated:

'If we have not raised an issue of lack of diligence on the part of Mr. Lee, then the second issue is not submittable to the jury and the Court can control that, and, as I say, this jury will go out of the case and have nothing to do with it, and we will have to go up on that proposition if the Court fails to submit the question of diligence or non-diligence, and the Court has the right to inquire into those matters now and determine whether or not the case was illy or properly decided in 1949 on the issue of diligence. We raise that question, it is the foundation of our lawsuit, and if we can't get over that hump, or we have got no right to submit the second one, so prejudice is a matter of no concern with these people if the Court elects to refuse the submission of this particular issue.'

At another point counsel for appellant also stated to the trial court:

'The issue is this, was there a lack of diligence, and if the Court finds we don't raise that issue, then, of course, 'Mr. Jury, go home, that is the end of it."

In the light of the statements by counsel to the effect that the only question was the sufficiency of the diligence of Mr. Lee, that they were not charging him with fraud, and that if the court held that they could not go to the jury on the question of diligence, appellants could proceed no further, the jury was discharged and the only evidence received was that offered by appellants for the purpose of raising a prima facie case. That testimony was given and received upon a bill of exceptions for the purpose of demonstrating on appeal that appellants could have raised an issue of diligence and meritorious defense to the original cause.

Appellants in their bill of exceptions, however, did not offer any evidence seeking to prove that appellees or their counsel were guilty of any character of extrinsic fraud in the procurement of the service by publication and resulting judgment. Appellants made no contention in the trial court that appellees or their counsel knew the whereabouts of Lillian Bridgwater Adcock (Weston) when the affidavit was made. The record also clearly reveals that the trial court did not cut off or prevent appellants from offering evidence of extrinsic fraud in the procurement of the 1949 judgment, if they had any such evidence. The judgment, of the trial court also clearly reflects that there was no contention of extrinsic fraud, made by appellants before the trial court.

In view of the statements made by appellants' counsel to the trial court that they had no proof of fraud, that there were no issues of fraud, and their failure to offer any evidence of extrinsic fraud, and were not prohibited by the trial court from offering...