Conley v. Abrams

WESTERN 7 SOUTH bell insolvent, when the former stockholder the date of proof the court did makers attaching fore the certain that it was tainty required there liable. liams, sessment cause disposed makers of Texas that certainly Under,the guage even shown that transfer of the stock. That is stock sary pleading. holder ways bility solvency Beginning “We are “This stockholder, excess certainty. [(Tex. held that must be must while 8 Texas must be that debts * sold to ais crash the constitutional of his stock. in a bill to his bank became with the require holding ** can be plead its unwilling the bank his stock before he statutory liability against finally assets.” 265, of .the same realizing transfer of stock bank, presumption stock he once owned relieve himself fact, his evidently existed in that trying of indictment. any our early proof stockholder, debts existed case with a comes. But by selling relates to liability. Supreme insolvent after he had solvent, to his bank was go to enforce such to intention of provision. of Austin stock did degree only held sustain the neces- any back of State 277]W. not intend that out the exact there when it insolvency where that the Court who sells his great There could can date at that time it. is as would be pay shortly Of his the time must be just be liability already v. Wil- course, has al- equally the in- degree an as- Camp- supra. stock a lia- Pool. tiian law- law- held lan- cer- Supreme be- be- writ of error refused such additional land. issues as to in defendants’ tive law 4. County; to Acts same 3. Leg. clude 2. questions presented invalid as 40th tween homestead estoppel, plicable Court’s proval on Appeal ^[1927] Judgment Execution Courts Where Execution holdings additional all (1927) parties involving Leg. 40th substantially and Court c. W. S. refusal of writ <&wkey;9l On Motion for estoppel from District based on prior to land holdings title of the Court Civil 144). ^[1927] action c. and additional Leg. c&wkey;747(i/2) . under land, sale of favor, <&wkey;>275(3) in such 144, prevailing prior (I)— Sproles, Special case between involving would be subsequent did c. refusal of writ of not in excess statute of Court both decision Prior land, including by Supreme same title 144). appeal. not case from in itself Rehearing. c. —Doctrine —Execution to to apply 144), parties, error valid at least title issues of statute, land was of homestead. (Acts case. limitations, an Appeals prior to to land would not raising held doctrine Court Judge. substantially was not approval Acts 40th held homestead as to 40th Brazoria Supreme case be- error substan- sale of Appeals decided (prior on all (Acts inap- as to pre- Leg. and require Conley Trespass try a reversal. These conclusions title Ben L. necessary scarcely it, Judg- seems view pass upon cerning W. Abrams and others. I-I. question appellant defendants, plaintiffs appeal. raises con- ment judgment over his Affirmed. claim appellee Wright; not entitled to he was Enlow, Masterson, & Rucks A. E. and J. J. made, because, upon the case as that relief Angleton, Loggins, T. Todd, all Oliver right by respect in that pleadings, he his limited Beaumont, appellants. for. express agreement an Bromberg, McCormick, & Car- Leftwich pay Wright’s part the assessment Dallas, rington Townsend, all M. W. prove volved, We do not it. failed to but Wilson, Wilson, Houston, H. Louis J. not, under different determine whether Angleton, Robert C. R. Wharton Of circumstances, have been entitled he Houston, John, appellees. A. both of but incline to view might have. that he and remanded. Reversed PLEASANTS, C. This is an action of J. try brought by plaintiffs trespass error, title C. Tennil- heirs le, against Company, heirs of Texas (No. 9044.) al. et al. ABRAMS et CONLEY McCombs, Abrams, the heirs of W. H. Paul of other defendants. number Texas. Galveston. Court of Civil geheral 16, de- March The defendants answered murrer, denial, plea guilty, general Rehearing Denied June pleas of limitation. <&wkey;>766 I.Appeal court —Violation suit dismissed to a number preparation of brief held to warrant rules in original defendants, conclu- refusing points prop- and Rules to consider evidence, trial sion of (Supreme out ositions set remaining defendants, request the Texas 31). Abrams, Company, the heirs W. H. Appellant’s violation of .Court McCombs, the Produc- heirs of Paul Gulf the tion preparation brief, held Rules Refining Company, the Cr'own &Oil points refusing to consider warrant court Munson, Company, B. and W. instructed forth, except they propositions disclose jury to return a verdict their favor. error. fundamental Digests Key-Numbered Indexes topic and all cases see same KEY-NUMBER dressed number title, “points” Following general argument page 84, ments nor respective propositions on the who chased lows 15 pages instructed gated by copy preliminary copies the more of in the brief the evidence statement definite all lands nille, zoria taken 2 pages “points” appeal G. Tennille was wholly disregarded by below fendants tions, and result required by shown to have been cution sales from the headright Tennille. deed from stance onist veyance George Tennille, pages of The “remarks” are not The The If The land in facts controversy, a discussion original grantee, “statement the sales under execution and the- who, by succeeding Appellants’ in Austin’s county contain to the to the court’s 39 of of written of the material time defendants introduced two inference to the land under which Underwood C. Tennille fifty-ninth under the head of and distinct pages purporting to discussion, emanating sent or have record our any designated than these authorities belonging administrator and authorities cited are not ad- court of granted discussions of alleged Tom the brief. This is followed of the suit is made exceptions presented “propositions” claimed the land void, verdict in their favor. “propositions” upon statement rulings contained the rules for up inheritance copies number, occupy printed the land in his death. 1,200 pages controversy and the trial court “remarks,” Ammon are with the record. and that the will 7 .referred Colony. brief is not instruments, record to be based. the evidence” consists from Ammon page, was heirs legally pages to the a number of numerous are void, George Tennille, charge. titje became the proposition. this court. brief. 12 showing general Underwood are controverted issues. mained, and the 1839 definite cited and the execution duly a presented directly bearing bills of theretofore addressed to all of coming “Remarks,” the brief original grantee, to, or son court. of the statement was made after return contain the 38 void, because the sale George briefing promul probated, original grantee George sheriff state brief, a probated, but These extending and of the next statement of prepared contained grounds proposition. Underwood, in the first the nature the will of conveyance which the CONLEY ABRAMS exceptions Beginning through discussed. George chains owner Then fol no Tennille, the sub contains properly Most of next C. proper at exe- of the excep er the copied and a a argu clear Edwin Waller was alcalde Bra- Ten- pur any against George col- 7 the Edwin de- 15 as was 10 S.W. (2d) a and the case that he lost or not, however, cution issued taken propositions sought Nacklinger out law. because or deed. nothing Brazoria, a courts of the ty dence, without was had no grounds upon which presents execution. contained sale was made was for claimed suit to the face 1S34, ed sale of statute, and therefore void.” day, ecution. Shamburger we cover a rules 29 and 31 have not been (Tex. " foreign jurisdiction “(b) Because, under the uncontroverted evi- “(f) “(e) Because execution issued in defiance of “(c) “It “(d) “(h) “(g) Because “(a) “(i) In the The From this designation copy at the time this at are not 38 void: contents of the and not on a void discussing May therefore 294 away. Civ. us, Because same constituted an record Because the jurisdiction Because the Because the Because Because the record “points” to the void Wajler, none was described destroyed. void did not jurisdiction of fundamental error Brazoria for homestead, closing S. W. 977. remaining for unless some one or more of them determination App.) record. presumed judgment September term, 1837, 110 & required might properly fact, Republic. on the (Tex. is thus stated : want of records of presents functions of 1833. The evidence shows that Rayburn summary discloses no appears assignments or or authorize the alcalde for dispose day permitted 246 W. portions above $100. sum all the in favor of Zeno brief, executioh was judgment land was levied judgment Civ. presumed judgment “propositions” First parties. judgment upon sale and bond were considering any without brief, void over the Geore Tennille 26 and was to consider S. parties. $204.90, no v. Prewitt pages App.) that on March a presented. Nat. the alcalde had sale in 1839 added fundamental $204, original nullity summary be affirmed with- was rendered aft- in the execution apparent office have been 1056; the sheriff sale enjoin n contrary coun- the “remarks” Brazoria defendant, Bank v. Smith and the authorizing .(Tex.) attorney or manifest observed, was rendered appeal. rendered revival void want arrangement any required of district thus hurl- (Tex. which the rendered, attempted Green v. brief. grounds for brought right We will an exe- interest Phillips or sale is further., on the one of was of alcalde to the error, sold, that 675 ex- re- WESTERN SOUTH entry judgment to in in the case found the court records appeared him and confessed “Injunction being appearance, these words: dissolved confession make such against him. cost of Tennell.” the suit notice of he had appears alleges injunction issued that an execution was also This by judgment Zeno fa- to clerk in petitioner not indebted the district on was the Phillips alleges: amount, Phillips,” further of Zeno and land and the “heirs in vor of the defendant George Tennille was levied Phillips Zeno avers that further “Tour orator by upon and sold the sheriff to the defendant legally judgment dead, ob- was if the George “his on a credit of Tennille son” his and tained, name, issue in could not execution the administrator, force, his but must be in in twelve months. Under law then the void, being in the therefore execution pay- and the would George for executed a bond the Tennille your And orator name of said decedent. judgment, ment of the due on amount the represent your unto honor surety. as with Thomas K. his Davis judgment purported before was obtained the subsequent executions under which land the Esq., Waller, coun- in and for the alcalde Edwin controversy in to were was sold the deceased ty under the Mexican Brazoria aforesaid judgment Now, government. on issued this bond. aforesaid if the government, execution, said still was well obtained under Prior Am- to the issuance against your ac- orator enforced it could not be purchased judgment mon Underwood had the Republic by cording forth- the to the laws of Phillips from the administrator of the Zeno orator, your against issuing an execution with subsequent and all executions issued estate thereon your given said orator of must be but notice for his benefit. place appear judgment and show cause a time and certain at April,- 1842, was issued judgment an why the George against against Thomas K. Da- or Tennille and him the district be revived good court, and, county was vis, if no cause 1,000 the and land thereunder acres the judgment then, then, shown, could and till upon involved in by sold this suit was levied and your issue and an execution rendered county first the of Brazoria on sheriff the Tour orator for the claim aforesaid. orator Tuesday June, 1842. Ammon Underwood prays set of facts in tender consideration purchaser sale, was the and at this the land land you grant your premises him forth writ the by was to him the deeded sheriff. The injunction coun- of said to the coroner commanding person upon ty the sheriff levied sold described county amounts of said to collect the “1,000 said as land off the sheriff’s deed acres of may execution, issue from and that a notice George league lower corner of the rep- county proper said court of. district near town of Colum- above and Phillips your when Zeno of said resentatives bia, headright known they as. they are, and that discovers orator proceeding, George party may Tennille.” be made they appear said the next term of district proceeds being sale insufficient the facts to answer and there court then satisfy and cost forth, petition. your orator, And as in in this by another execution was issued the clerk pray,” duty bound, ever will etc. county court of Brazoria No- the district on injunction due vember judgment. for balance temporary on this was issued prayed petition for. an ordered this execution addition- and citation term, 1838, controversy of the district the March acres was At al levied zoria following by in this answer was filed sold sheriff of Bra- January 15,1847. injunction county suit: on Underwood purchaser, sale, at this was and received County Republic Texas, Brazoria. “The deed from the sheriff. term, March “District Court proceeds being this sale also insuf- Phillips. v. Heirs Zeno “Geo. Tennell satisfy judgment, ficient and sale was made under the second execu- second “Injunction. day March, sale, attorneys by At this the 2d tion. 1847, his in this “Defendant injunction be dissolved for the that the Underwood 250 acres of the moves following First, that the facts stated by reasons: land, deeded him which thereafter was untrue; second, plaintiff’s the sheriff. granting they true, not warrant would George coun- died Gonzales O. Tennille they injunction, inasmuch as have been an 1874, leaving ty he de- a will which appears judgment, pleaded before son, Tom Ten- his to his O. all of lands vised original record that the defendant brought judgment. attorney suit Tom O. Tennille nille. In 1903 confessed suit injunc- prays defendant that the of Brazoria “Wherefore district court in the against dissolved, and that execution tion this case in this suit defendants plaintiff for the amount issue remaining defendants and the vendors cent, original damages per interest and 10 with controversy. A land here in recover the costs. suit, terms had in that was settlement of which the Pease, Defendant.” “Townsend & acquired title to all defendants they except acres, land, April term, At Tennille, injunction veyed dissolving O. to Tom deed rendered in the case Tennille; only judgment here. not in the cost of the nine contain ner der which Underwood controversy plaintiffs from olds is entered in the of land execution sale attacked the that case was a appointed are the 273 S. W. district court of this upon ney, Joseph appellants’ brief, doctrine of in olds, these adversely the al., tion, appellees cite, Benavides W. appellees Tennille, -deceased, probated quired. issued as Personally appeared trict Clements filed dorsement court 553.” tition will of of subscribed the “Amanda “In “Testimony Poliowing We Every question affecting August 31, The will In proper the the defendants in will in which Clements Case. The land suit was court in Book finally vacation in the questions are raising district .court Gonzales -George office subscribing very the purchased by and Hanrick this court And after notice grounds, copy the form and claim that relieved of a that, Case. of its by August 1, George C. J. Tennille temporary thereon: following entry stare F of were earnestly O’Connor, appellants 55 8. W. Amanda Garcia of John S. notice vacation raised, considered, following will, Sptr. in this suit estoppel preclude appellants C. bis the doctrine of stare decisis were Gonzales entry, decisis which but because each the this suit were defendants subscribing of Clements v. Texas void, questions above in this required witnesses to said widow, sworn praying district sought before-the 2nd, O. support (Tex. 1874. Proof will. the execution sales probate minutes of considered and decided of the first having insisted Tennille, by Underwood under the John Tennell, filed a administratrix detailed-discussion in this plaintiffs the affidavit affidavit.” in an bad Reynolds. minutes, 1874. Probate citation Gurley, against citation Clements others, county asking suit, Com. deceased. Amanda only by that clerk is found: ¿nd out, upon filed S. W. 330. The witnesses, clerk of opinion annexed.” suit.' was discussed Reynolds, John S. entered following no presented the 93 Tex. them the this conten- in that case involved having of Gonzales validity in the office which also counsel for CONLEY of the will Case. Probate and all her attor- 'was by the man objection. will, cases, same be the her law of this passed Supreme 290 S. in the which Co. Reyn- Reyn- of the “with acres of the writ. F, been filed dis- un the pe- re- be in stare decisis was of was et s.W.(2d) p. v. ABRAMS passed upon the rule stare decisis is based writ was not ing writ the second suit. This cannot be said of the was affirmed in-an time the writ of error was refused in the in the principles lot of a fendants, was not Under our Legislature, sented Appeals in of pellants in their of this court ror, Francisco and Juan 330; 377, stated in the Black effect, terest in that concerns different the ed with an undivided 613: did ings Clements 672, 822, Tex. writing conclusive though state has a quent litigation involving (Tex. [Uazaro] here in “When in one In the Benavides Case both the [2] When the ^[3] particular finding- the stare this both law in force that Supreme case in so far as it affects the interest of in refused, that under the will applied 458, if this statute had For the reason O’Rourke of an Commission of tract Judg. opinion by the err the S. court in that ease was also based on- court in the former or state of error in error in the Clements and the Commission of opinions decisis should be of these Court of writ of error is necessarily Court in 855, 54 S. W. Case, in a decision of the other App.) of law as declared of limitation in in former suit.” holding itself an present statute, here involved. The court approval presented by c. the exact effect to a Court in the denial §§ 930; Hennegan admitting the Fourth the refusal of Supreme Court, tract controversy, appeal, 857, 144, p. 215, v. the identical matters in. subse- case. we would 607, 609; the Benavides Case is 195 that, the Court opinions Supreme controversy, necessarily properties. refusing Clopper, 347, facts, Benavides were each vest- of the Court of all of the opinion by S. W. approval above former identical involved in the refusal Appeals (290 and, one-half interest in questions time this reached of the Court of Civil 55 S. W. specific issue, Hanrick v. - specific such District, different here highest question is determinative in applied against ap- since the hold the refusal the indicated, Freeman 22 the writ of error. Court favor suit, v. Nona Mills Acts with his interest court in determination decided 21 C. J. Tex. since questions application in Case. Justice matters, the So the writ of writ of instrument writ 119, presented refusing effect approved court of the determined necessarily parties refusing S. W. held Gurley, questions given Civ. the hold Supreme holdings [his] Appeals, 56 W. Judg. the rule Fortieth proceed- of error Appeals the doc- the de ** holding by aU the Under in Speer S. state given 740). App. thus even pre Co., the er- in- be by in 93 §§ * SOUTH WESTERN ,is record is pressed necessary firmed, said discussion Case, tions in this suit execution emanates. conclusions overrule all pellants the Hanrick v. second suit privies. which the them in the ents by appellees estopped acquiesced peal in this case. trine the first suit As We Affirmed. The While clear and the second follows that the was taken Case, written opinion also adhere and it disposing in that we do not think cannot be On required, plaintiff! we adhere between the expressed exhaustive, Motion sustain add suit was by Special is In the case Hurley, raising appellants’ estoppel from from which appellants’ anything decision, was held ordered. heard of this district these,objections. to the the contention that decision. supra, the same permissible. decided were decided Rehearing. which was and we deem Chief Justice all of the cited, to raise the objections to what ¿rising estopped to raise authorities conclusions ex- brief parties appellees’ title of the should be question opinion, plaintiff in the Clem- validity no further applicable applied Clements S. Tennille. material question is there or their Having lant. to the not owned him in Sears, gleson, it un- ques- cited in a af- ap- in some sented in the motion. tained in complains urges held valid. Smith v. refused. our main passed by Boyce we are not would dence is such as to 1,000 southeast corner of the volving homestead deed tween in the These the We Refused. The unnecessary W. conclusion court. levy, W. If acres of years all of the adhere to the conclusion 1,000 admissions are circumstances, record motion render the his land and land owned 26 Tex. Civ. southeastern 701. Hornberger, appellants’ opinion, the execution sale and and some land would by him, prepared acres location after Tennille homestead nor Am. St. many conceded, speaks sought numerous discuss other we rehearing repeats have included and the motion other errors but as taken App. 192, think the sale Rep. to hold that such brief, and, too require portion 29 Tex. Civ. purchase, Crosby, no title and sale however, grant, the division itself, be drawn indefinite to not. in a 818; Ryan assignments 62 S. the remainder 86 Tex. questions pre- square and we deem committed void. expressed would finding Tennille’s App. a suit has W. by appel- addition, sheriff’s and re- by him, to land line be- the evi time of justify grant. have facts En ágree the statement with cannot We rehearing evi- pellants’ motion for on the trial adduced dence in the case this court issues of Clements Co., UVALDE PAVING CO. et al. v. CRABS et al. v. Texas (No. 3534.) materially evidence different practically evidence Case. The Clements of Texas. Texarkana. cases. two identical April 20, 1928. evidence in contention the time .of shows Rehearing May 10, Denied 1,000 south- acres sale the .execution grant, Tennille east corner <&wkey;>5l3(7) corporations 1. Municipal —Evidence acres in of 200 a homestead had held insufficient to shbw fraud of town council por- grant, and other give failing in proceedings that corner notice promised further grant affecting improvement. local corner of that tions supported Temhille, by George is not Evidence held insufficient to establish fraud failing give promised the record. of town council no- improvement record from tice action local evidence There abutting proceedings reasonably owners. inferred that Ten- it can that, portion a homestead had nille <&wkey;297(l) Municipal corporations Property— levy grant and sale under time presenting objections owner, proposed contrary, On the execution. chargeable street improvement, notice with only evi- negatives such conclusion. proceedings official of subsequent of council. any portion tending to show dence property owner, appearing presenting square in form acres in the southeast by objections proposed improvement, to a street his. is grant was not owned charged by corner notice relevant official proceedings state- time of the council which thereafter oc- cur. made Underwood or admissions ments Digests and Key-Numbered in all Indexes topic and KEY-NUMBER &wkey;For cases see

Case Details

Case Name: Conley v. Abrams

Court Name: Court of Appeals of Texas

Date Published: Mar 16, 1928

Citation: 7 S.W.2d 674

Docket Number: No. 9044.

Court Abbreviation: Tex. App.