*1 law, fact, prop- and not erly judgment. entered the Contracting Company Flores,
Tower v.
157 Tex.
ed.
Affirmed.
KIMBERLY DEVELOPMENT CORPORA- al., Appellants, TION et
FIRST STATE BANK OF GREENS BAYOU al., Appellees. et
No. 14834. Appeals
Court of Civil of Texas.
Houston.
June 1966.
Rehearing July 7, Denied 1966.
632 judgment summary
ants’ motion for should granted, accordingly judgment and plaintiffs nothing. rendered that the take timely Only Development Corp. Kimberly appeal perfected an an bond and filed appeal to this Court. case, the
During argument this of attorney appellants advised that for according to the record the Court before only Development Corporation Kimberly Court, perfected appeal had an to this Taylor Mr. and since Mr. and Mrs. and appeal Mrs. Barksdale had not filed an case, appel bond. After submission of on be attorney lant’s filed a motion herein Development Corporation, Kimberly half of Taylor Mr. and and Mrs. and Mrs. Mr. Barksdale, he -refers to of in which all appellants, prays this Court them as and transcript supplemental for file leave to pro nunc tunc (1) judgment include: 4, 1965, expressing the as of November parties this action original intent of the appeal for Plain stating notice of Balsón, Houston, appellants. “w/ Joseph R. tiffs,” appeal (2) and bond Tay Strickland, Development Corp., S. Gordon, Houston, Gerald S. James lor, Sheinfeld, counsel, Cherry King Taylor, Howard S. Houston, Jr., of Gordon & Barksdale, appellants. Barksdale, Teresa appellees. and original judgment in this case The WERLEIN, 4,' 1965. by the court on November entered Justice. judge who signature of Under the brought by Kimberly De- This suit was long- is judgment written entered such corpor- velopment Corp., allegedly a Texas appeal hand for Plaintiffs.” of notice “w/ wife, Cherry ation, Taylor, Jr., S. and James judg- pro tunc a nunc January On King Taylor, Howard Barksdale and S. by the and entered ment was rendered Barksdale, wife, against First Teresa November, 1965. day 4th Court as of the Bayou State Bank of Greens above the end of this At Corporation, purpose for the entry, notation judge’s signature having trust executed a deed of “ * * * appears following: and Mrs. Taylor and Mr. Mrs. Mr. and, in excepted plaintiff thereto which invalid, fore- Barksdale declared ap- court, plaintiff’s open gave notice closure made under said deed peal.” declared described therein appeal court, having notice of The It is our view that the ineffective and void. judgment of consisting plain- pro tunc pleadings, given in the nunc considered the court, especially in petition view original the trial tiffs’ defendants’ original judgment, appeal in answer, motion for original, o appeal by all af- and their is a sufficient notice judgment of the defendants Rule thereto, plaintiffs that defend- in the suit. Under found fidavit attached Novem- Procedure, Texas appeal Rules Civil bond filed singu- original Kimberly Devel- plural lar and 24, 1965, appellant, number shall each include her the other. opment Corp., as follows: *3 attorney produced
Plaintiffs’ has now It has been held in numerous cases supplemental transcript appeal containing an appeal the time for an filing bond bond changing style jurisdictional of the to is case appeal and that bond an “Kimberly Development Corp., Coates, Et Al v. cannot be waived. Montgomery v. Bayou, Al,” Tex.Civ.App., 671; State Bank of Et Greens 3 Tex.Jur. 2d, p. 553, Appeal Error, 299. Rule changing the words § “APPELLANT_ Procedure, Texas pro Rules of Civil appeal” ha taken an “AP- _s words vides, however: appeal,” have taken PELLANT¿ reciting: THEREFORE, we, “NOW said “When there is a defect substance Appellants Corp., Kimberly Development any appeal or form in or writ of error Taylor Cherry King S. Jr., bond, and wife then on motion to dismiss the same James defect, appellate may such Taylor; and Howard S. Barksdale and wife allow by filing to be same amended Teresa Principal,” Barksdale as Such etc. appellate bond, in such court a new bond signed has been Taylor, S. James may prescribe.” terms as the court Jr., Howard Barksdale, S. Development Corp., Al, By Et Howard In case, original instant Barksdale, Principal. appeal transcript timely bond and were filed given and this had jurisdiction allowing appellants, Court other who obtained suit, over the respect proper appeal at but had not thereto least with Kimberly Development Corporation. bond, right joined appeal fore original appeal whether or not amended bond which file an appellants. bond can be as they joined amended such manner Taylors include the and the Barksdales attorney case, both the the instant although their names were not included appellants attorney for for the original opinion bond. We are respective appellees filed briefs their including new bond names question of the clients without raising may properly said individuals appeal bond. original inadequacy of as an original amendment bond. represented appellants All were parties counsel, apparently permit their motion all filing to- o-f the same *4 appeal bond, clearly appeal perfect appellants new had been have considered that the plaintiffs indicated that it the in the was the intention of all ed in behalf of all of original plaintiffs the appeal. to v. State It seems suit. See also Cornelia Henslee 474; apparent through Texas, Tex.Civ.App., that oversight or mistake S.W.2d 375 Mullins, Tex.Civ.App., appellants the 348 S.W. names the individual were Mullins v. 69, n.r.e.; Painters’ original ref., Holley not included in the bond. Permis- 2d writ Tex.Civ.App., given supplemental 318, sion is 376 herein to file the Local Union No. n.r.e.; transcript ref., Family In including 44, the new bond which writ S.W.2d by Paley, Tex. appellants. has been executed all of the vestment of Houston v. Co. 353, dism. Civ.App., error 356 S.W.2d distinguish have been We unable to the present case from Mu Bean v. Hardware reason Although for some unknown Casualty Company, Tex.Civ.App., tual 349 Corp. joined Kimberly Development was Supreme S.W.2d in which the Court Tay party-plaintiff Mr. and Mrs. as a with writ, only refused a case n.r.e. In that Barksdale, is Mrs. there lor Mr. and and plaintiff, Bean, gave Irene notice of that plaintiffs’ petition showing nothing in appeal appeal The and her bond. filed any in Development Corp. has Kimberly appeal bond, however, court recited that the only whatever in the suit. terest “Plain entered a to which the respect Kimberly Devel allegation with to tiffs, Bean, excepted duly Irene et al” and petition opment Corporation plaintiffs’ in gave appeal. notice of There nois similar duly organized corporation is a is that it original appeal in bond filed recitation existing under the laws of the State and herein, but the record shows that Texas, in and engaged the construction appeal in behalf all the given Houston, Harris in real estate business appeal appellants. body In bond of the filed answer County, Texas. case, only in the Bean Irene Bean is named attached appellees, and in the affidavit also principal, as words “et al” summary judgment, appellees’ motion filing permitted not used. The court Corp Development “Kimberly isit stated: appellants of the amended bond to include not known to the State oration is appeal joined original who had not in the Bayou the First State or Bank of Greens bond, citing Bank Lusher v. First National privity in or Corporation party ref., Worth, of Ft. writ S.W.2d in this entire transaction.” interest Brownfield, n.r.e., and Marlett v. Tex.Civ. any affidavit App., appellant not 353. The court concluded Said has allegations bearing any in manner denied reasonable ear nor that instrument any at- appellees’ the affidavit appeal having been filed in answer and of an bond marks summary appellees’ motion for appellant gives any in tached due time in whatever nothing Appeals judgment. There is jurisdiction of the Court Civil appellant had appellate in to show that said appeal justifies the court the record incorp- present herein, duly any Corporation, or is a Texas justiciable has interest in the prosecute powers same. trust any right exercising delegated suit or orated and by former genuine Since no fact under its charter as authorized issue of material 1303b, interest Annotated Texas respect any has been raised Article Vernon’s with Development Corporation the affidavit of Gerald S. Statutes. litigation, Gordon, summary judgment this filed with the motion general properly granted judgment, it is he is the as to it. stated that Bank of for First Greens counsel Appellants assert that the court trial Bayou cognizant that he facts excluding erred in an from the record In his affidavit stated in such affidavit. support affidavit an allegation prior immediately he to October stated petition agree plaintiffs of the 13, 1964, he and contents dictated the form by purported ment had been entered into Taylors of a agent for the trustee of Barksdales for the of First State use plaintiffs, extending the due date property, certain Bayou Bank of Greens “trust deed”. The record no af contains it, payment describing to secure the If appellants. fidavit or in behalf of $125,000.00 note in the sum of executed any there part error on the Barksdales, Taylors but connection, trial such has it transcribing that in dictated instrument forward, properly brought hence been the name of First State Trust *5 cannot be considered. erroneously typed as “First was State Corporation,” and that deed of trust said Appellants complain that trial court the by Taylors and the Barks- was executed the erred in the granting motion for Corporation favor dales in of First State mistakenly “in that the trust deed Corporation, instead of First Trust State designated corporation a non-existent as duly it for record and and that was property; trustee for purported the the subsequently duly recorded. by foreclosure sale was rendered invalid the deed,” ap- mistake in the trust and that In his affidavit affiant further stated pellees’ remedy was of the reformation that the consideration of for the execution trust by Ap- deed sale before foreclosure. said secured by note deed of said trust pellants referring in to the deed” “trust by was delivered First Bank of State Greens trust, have copy reference the deed of Bayou note; to the makers of the of which appellees’ is attached to motion paid; such note was not that under the for summary judgment, and exe- which was express provisions .and terms said deed wife, cuted Taylor, S. trust, Corporation First State Trust James Jr. Cherry King Taylor, and Howard Barks- S. property sold the in at trustee’s dale and wife Teresa Barksdale. appellee, sale to First Bank of State Greens Bayou and delivered to bank its said trustee’s Taylors The evidence shows that the 6, July 1965, deed dated recorded in Vol. $125,000.00 Barksdales borrowed 5987, 469, page Deed Harris Records of Bayou, from First Bank of State Greens Texas, County, copy of which attached was and executed promissory and delivered their affidavit; to said it and that is recited note in appellee, said amount to said in such trustee’s deed that the name executed their State deed trust to First Corporation First Trust State had been Corporation, trustee, as on real certain erroneously transcribed First State as Cor- estate to secure said note the use poration. benefit of the noteholder. The evidence further there is no shows that was and record does copy The not contain a corporate entity the First posted with name of of sale which although was Corporation, State but that First State deed trustee’s that “First recites State n * * Corporation, Corporation, Trustee, Trust appellees one of the Trust did * * * time, place palpable advertise that it said less a mistake so can be sale, terms notices thereof as a posting matter of the face law public places County, itself, in three in Harris that such mistake instrument * *” * knowledge Texas It also made the sale made. It is a common matter of deed. There cor- executed trustee’s that the addition in omission or nothing porate may distinguish whatever face of the deed name of word one any trust to show that was made Here corporate mistake one entity from another. in the naming unequivocally or that it trustee trust named First deed of was the grantors other, intention of execut trus- Corporation, State none as ing notices, post of trust corporation deed to make First State tee. did That Corporation Trust rather than First property State sell trustee’s or execute the Corporation power the trustee with sell in First authority deed. No was vested property perform at Corporation trustee’s sale. State Trust corpora-
tasks. The fact was no that there name, Corporation, tion First State un question arises whether upon any way did State not in confer these omission of the der circumstances the power act as Trust executed in the word “Trust” deed trustee’s trustee and sell the at by appellants, giving as was done corporation sale. there no such Since Corpo First State name such trustee as Corporation, as no one was First State Corpora ration of First instead capable of trust nominated tion, said deed of under invalidated trustee, for such serving and the sale that deeds trust. is well settled The law reason also was invalid. v. strictly Hart trust construed. must 665, Estelle, Tex.Civ.App.1930, 34 S.W.2d Maupin, Tex.Civ.App., 153 Chaney Court, Tex.Com.App., Supreme aff’d 187, grounds, 139 other S.W.2d reversed on 510, that there it was S.W.2d contended in which there Tex. the scrivener clerical error of *6 misdescription property the in was a of deed, by in mis transcribing the trust trust, the said: the deed of renewal beneficiary he the take the name of inserted “Indeed, considering the con- strict the he have inserted trust where should applicable deeds of trust struction to trustee, name vice versa. the thereunder, we authority of trustees holding invalid said: the sale the Court was think of 1934 the instrument renewal palpable so there was a mistake “Unless lien on said insufficient as a contract conclusively a say as matter that we could 28; being remedy mortgagee’s Lot the the of law face of instrument from the for reformation to the courts recourse (see C.J., 11 made itself that it had been judicial a antecedent to the transaction 839, then, it p. 60), could note before Estelle, Tex.Civ. foreclosure. Hart v. rectified, to instrument would have 665, Sup. App., affirmed proceeding proper in a be reformed Ct, 55 510.” S.W.2d In the absence brought purpose. for that Court, opinion in said Supreme in its power could of such proceeding, the case, stated: exercised, except in man- properly be provided in instrument. expressly ner description property in “This situation, analogous see For a somewhat alone, trust, standing unaided the deed of v. Refining Co. Davis Humble &Oil what any extrinsic evidence show (Tex.Civ.App.) 282 930.” S.W. conveyed, to be property was intended to constitute a valid
was insufficient property conveyance to trustee of the nothing in the deed There any Savings-Loan controversy (Texas mistake here in in to indicate trust 551, trustee, Seitzler, Tex.Civ.App. 12 much Ass’n v. designating in was made
637 any purported and hence 348), Schreiner, legal S.W. vested the title in sale under the deed of would not equitable trust Moores have title there- lien constitute valid foreclosure proportion to in to the amount of the on the land here under consideration." consideration which was furnished them.” case, In the instant it would have Vineyard O’Connor, supra, v. the court necessary to been resort to extrinsic evi held that a deed was not void for failure dence to show that a mistake been had grantee, to name a since there were recitals trustee, naming made in and that First in the clearly showing deed who was Corporation and not First State State Trust have the beneficial in property, interest Anyone in was trustee. and to whom the title to be warranted. ques tending to bid at the sale in trustee’s The court said: “The whole instrument is -might have tion well been deterred consistent with theory that Samuel Har- being making bid for sold vey Vineyard grantee was intended to be a "by at trustee’s sale Cor State Trust therein, possible no other construction poration, if he had consulted the recorded can peculiar reconcile its provisions.” observed, might deed of trust and he done, Corpora have that First opinion, We are of the construing tion was not named as trustee and therefore evidence and favorably ap- facts most authority property. had no to sell the Since pellants, trust, that the deed of and the sale summary judgment granted in this thereunder, invalid, and it is so held. appellees, indulge cause favor of we must is, This holding course, not intended to against inferences in all favor of those interfere pursuit by with the appellees summary judgment granted. whom the legal equitable such other remedies as may they have. Appellees assert that there was mere trustee, misnomer name herein, In view of our decision it is not necessary bring that it was not for them to necessary appellees’ cross-point to discuss a suit for reformation they appellants’ appeal which assert that prior exercising power con solely purpose is frivolous and for the ferred They rely therein. on Stith v. delay, and that attorney’s a reasonable fee Moore, 1906, Tex.Civ.App. 528, 95 S.W. granted appellees. should be 587, den.; Vineyard O’Connor, 1896, writ is, therefore, It ordered that the 424; 90 Tex. 36 S.W. and Knox v. against Development Gruhlkey, Tex.Civ.App., 192 S.W. *7 affirmed; judg- and that approval Sigel which cites with Staak v. appellees ment in favor of as to the other kow, ap- 234. The Wis. cases cited appellants be reversed and remanded. pellees distinguishable the instant case, in that of them none involves a Moore,
under a deed of trust. In Stith v. FOR ON MOTION REHEARING supra, question the deed in made to Appellees, rehearing, in their motion for Schreiner Charles Llano Bank. complain foregoing of our statement in the County The Llano Bank firm name was the opinion trust, the “deed and the sale a partnership consisting persons of two clarify thereunder are invalid.” In order by the name of Moore. The held that matter, now state that it was not we County the difference between the Llano our intention to hold that the lien on the Bank Bank Llano did vitiate property is invalid since it said: deed. The court further apparent grantors in the deed of that the lien, but trust intended to create a valid paid money “The for with sale made under trust was belonged which and the two Schreiner Moores; opinion least, Our is not to be construed and, say the deed invalid. preventing legal proceeding to reform so trustee’s sale deed of trust that a might preventing or as be made thereunder proper proceeding for reformation judicial foreclosure
deed of trust and
the lien. rehearing
Motion for overruled. FARRIS, Appellant,
Pauline
Billy FARRIS, Appellee.
No. 7629. Appeals
Court of Civil of Texas.
Amarillo.
June 1966. Nowlin,
Frank Gaston and Lee Plain- view, appellant.
LaFont, Tunnell, Tudor, Formby & Plainview, LaFont, Plainview, Reep, Bill counsel, appellee.
CHAPMAN, Justice. *8 involving the case settle- a divorce custody child property rights and ment of 10, 1964, ap- January the court tried to Ferris, plaintiff, cross pellant, Pauline custody of the granted a divorce children, ending second mar- minor four parties. The riage between the par- agreed theretofore settlement approved by the court. ties was