202 S.W.2d 335 | Tex. App. | 1947
Suit by Mrs. Meta Drews, joined by her husband, against John Knox, in his capacity as guardian of the person and estate of Englebert Reuther, n.c.m., the father of Mrs. Drews, to recover $250 paid by Mrs. Drews to E. T. (Ted) Simmang, Jr., -April 23, 1945, the day before the father was adjudged non compos mentis,, it being asserted by Mrs. Drews that the payment was made for the account of and at the request of her father as attorney’s fee for Sim-mang’s representing her father in the lunacy proceeding then pending. From a judgment upon a special issue verdict in favor of Mrs. Drews for the amount sought, the guardian has appealed.
Appellant’s brief urges 22 points of error. These we shall not discuss in detail, but will state the controlling facts and give our conclusions thereon, which dispose of the appeal. Appellees have filed no brief or otherwise appeared in this court.
Mrs. Drews was one of nine children. The mother had died some time previously, and Mrs. Drews was administratrix of her estate. The lunacy proceeding had been brought by Ludwig Reuther, one of the nine children, and was being contested by Mrs. Drews, who also sought to be appointed guardian. - In this contest and application she had employed Simmang to represent her. She testified, however, she never paid him anything for his -services. The order of April 24, 1945, which adjudged the father n.c.m., recited the intervention of Mrs. Drews and another brother, each seeking appointment as guardian; the waiver of other named children; and that “it appearing, to the court that said Engle-bert Reuther was without any guardian of his person or estate and that no one was authorized to represent and answer for the said Englebert Reuther, the court thereupon appointed Ted Simmang, a member of the bar,, as guardian ad litem to represent said person of unsound mind, and having filed his answer herein, all parties announced ready for trial,” which resulted in a jury verdict and judgment of insanity, and the appointment of Ludwig as guardian; the order reciting “that a fee of $50
The only evidence of any agreement between Mrs. Drews and her fáther under which she claims to have made payment to Simmang, was the testimony of Mrs. Drews herself. She testified in this regard that her father’s funds were tied up in the bank on account of the pending lunacy proceeding, and at his request she paid the money to Simmang. This testimony was objected to as incompetent under R.C.S. Art. 3716, the pertinent portions of which read: “In actions by or against * * * guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by * * ■ * [the] ward, unless called to testify thereto by the opposite party * . *
We sustain the several points of error urging in effect that the evidence conclusively shows that Mrs. Drews was not 'entitled to recover, for the following reasons:
1. The evidence conclusively shows that on April 23, 1945, and for several years prior thereto, the father was incompetent mentally to conduct his business affairs. Therefore, any contract he may have made with Mrs. Drews on that date for the purpose alleged by her, was voidable; and the claim based thereon having been disallowed by the guardian as soon as presented to him, the estate is not liable therefor. See 24 Tex.Jur. pp. 380-385, * * * 7-9, and supporting authorities.
2. The testimony of Mrs. Drews regarding the contract with her father on April 23, 1945, was clearly incompetent under Art. 3716,' and the court erred in admitting it. Without this testimony there •was no evidence in support of the judgment.
3. The above recitals in the lunacy judgment of April 24, 1945, “that no one was authorized to represent -and answer for the said Englebert Reuther," expressly negatived the existence of any previous employment of Simmang in this regard, Both Mrs. Drews and Simmang were parties to this proceeding and bound by these recitals: Mrs. Drews in her contest and application for guardianship, in which she was. represented by Simmang; and Simmang under appointment by the court to represent the father, for which he was allowed a fee of $50. If, as claimed by Mrs. Drews and Simmang, she had already paid the latter $250 as attorney’s fees for the account of her father, it was the duty of both to- disclose that fact to the court
The trial court’s judgment is reversed, and judgment is here rendered for appellant.
Reversed and rendered.