National Surety Co. v. Landers
235 S.W. 275
Tex. App.
1921
Check Treatment
WILLSON, O, J.

(after stating the facts as above). [1,2] The order of the county court approving the guardian’s report.was made October 26, 1916. By the terms of the statute (article 733, Vernon’s Statutes) appel-lee was not entitled to have the order revised and corrected after the expiration of two years from that date, unless she was then of- unsound mind, in which event she had two years after the removal of that disability in which to institute proper proceedings to have the order corrected. Appellant does not controvert testimony showing that appel-lee was of unsound mind and confined in an insane asylum from 1908 until after the date when the guardian’s report was_ approved. Nor does it controvert the rule of evidence which required the trial court to presume, in the absence of testimony establishing the truth to be to the contrary, that appellee continued to be of unsound mind until she was finally discharged from . said asylum September 15, 1920. Herndon v. Vick, 18 Tex. Civ. App. 583, 45 S. W. 852; Rowan v. Hodges, 175 S. W. 847; 16 Cyc. 1052; 10 R. C. L. 872. Its contention is that it appeared appellee recovered her reason more than two years before the time (September 13, 1920) she commenced the proceedings in the county court to revise and correct the order approving said report, and, as supporting the contention, appellant points to testimony of appellee as a witness that she had never been of unsound mind; that after she left the asylum in 1917 she did her own housework, transacted her own business without hindrance, and in 1918 or 1919 sued for and was granted a divorce from her husband'. We do not think it should be said that this testimony established as a matter of law that appellee had recovered from the disability from which she suffered and was of sound mind during the two years preceding the time when she commenced the proceedings referred to. The question as to when she recovered from the disability we think remained one of fact for the trial court to decide, and we are not prepared to say he was not warranted in deciding it as he did. In addition to the presumption the rule referred to required him to indulge was the fact shown by testimony that appellee was not finally and formally discharged from the asylum until September 15, 1920, and the fact that the county court did not discharge her as restored to her right mind, and direct that the property she owned be restored to her, until November 5, 1920.

[3, 4] Appellant insists it appeared that appellee’s cause of action on the guardian’s bond was a single one, and therefore within the rule inhibiting the splitting of such .a cause of action by the institution of more than one suit thereon, and providing that, when this is done, “the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits in either will be available as a bar in the others.” 1 C. J. 1106. We are inclined to agree that the cause of action was a single one, and therefore not divisible without appellant’s consent and at the instance of appellee alone. 1 R. C. L. 343. But_we are not prepared- to say it appears from the record that the division was so made. On the contrary, we think it appears it was not made by appellee, but by the court when he refused to pass on appellee’s claim of a right to recover more than the $1,061.55 he adjudged to her; and we think appellant is in the attitude of having consented to the division so made.

The suit appellee first commenced was for the whole amount she claimed appellant was liable to her for on the bond. The second suit was only for the items included in that amount which the court refused to pass on. As is shown by the recital in the judgment set out in the statement above, the refusal of the court to pass on said items was based on the view that they represented credits the guardian claimed in his report which only the county court had power to “change, correct, or modify.”

[5,6] Doubtless the view was a correct one; and if appellee’s suit had been to revise and correct the report and order approving it, the conclusion of the court that he was without power to grant such relief would have been correct. But that was not appellee’s suit. She did not seek relief of that kind. Her suit was to recover $6,050 which she alleged the guardian, while holding for her, wrongfully misused. The issues made by the pleadings in her suit were: (1) Whether she was entitled to recover any sum of appellant; and, if she was, (2) what amount she was entitled to recover. Plainly, the court had power to determine those issues, and he was not deprived of the power because it appeared in the evidence that inquiry by him as to appellee’s right to recover part of the sum she sued for was precluded by a judgment of the county court. He could have determined, as he did, that appellee was entitled to recover $1,061.55 of the sum she sued for, and he could have determined that she was not entitled, because of her failure *278 to make the proof necessary to recover the remainder of thát sum. If he might have done that, then the parties might have insisted on his doing it, and, had he refused, might have resorted to the means provided by law to have the refusal reviewed, and, if erroneous, corrected. Failing to do that, we think both appellant and appellee were in the attitude of consenting to the course pursued by the court when he refused to pass on the items in question. If that is true, then of course appellant should not be heard to insist that appellee was not entitled to maintain the second suit. 1 R. O. L. 342; 1 O. J. 1109.

[7] If the conclusion reached that appellant waived any right it had .to object to the splitting of appellee’s cause of action is erroneous, we think appellant’s contention that the judgment in the first suit was conclusive against the right of appellee to recover as she did in the second suit nevertheless should bo overruled. The general rule is that, as between the parties, a judgment is conclusive of all matters “put in litigation by the pleadings, and which could have been adjudicated in the suit.” Whitman v. Aldrich, 157 S. W. 464, 471. The rule probably would apply to the judgment in the first suit, as appellant claims it does, but for the recital in it showing that the court rendering it refused to pass on the items forming the basis of the second suit. That recital, we think, brings the judgment within an exception to the general rule, to wit, that a judgment is not conclusive as to issues which the court rendering the judgment “expressly excludes from its determination.” Converse v. Davis, 90 Tex. 462, 466, 39 S. W. 277; Pishaway v. Runnels, 71 Tex. 352, 9 S. W. 260. That the court rendering the judgment in question here did that is clear from the recital in that judgment set out in the statement above. Assignments not disposed of by what has been said are overruled.

The judgment is affirmed.

<g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes