49 Tex. 556 | Tex. | 1878
The question as to whether Phillis Oldham, under the facts found by the jury in this case, was the wife of William Oldham at the timé of his death, so as to be entitled to a homestead and other property exempt
The main objection to the judgment, relied on m the brief of appellants, is that the court erred in its action upon the defense of res judicata set up to this proceeding of certiorari to revise and set aside the order of the County Court, setting apart to her and to her children the homestead and other exempted property.
At the January Term of the County Court of Burleson county in 1869, upon her application for herself and children, the said order was made, setting apart to them the homestead and other exempt property, as the widow and children of William Oldham, as being the constituents of Ms family, left at the time of his death, in 1868.
The estate having been administered on by Williamson S. Oldham in 1868, an order had been obtained for renting the farm, and farming stock, and implements of said estate, in-. eluding the said homestead and exempted property, which had been rented to Teaff & Thompson for the year 1869, and they had taken possession of the same previous to the order of the County Court setting apart the homestead and other property.
To prevent the execution of an order from the County Court then in the hands of the sheriff, directing him to put her and her children in possession of said homestead and exempt property that had been set apart to them, said renters, Teaff & Thompson, in February, 1869, filed a petition for an injunction in the District Court of Burleson county, maldng said Phillis, and her said children, and said administrator parties, as defendants in the suit. The defendants filed answers, and at the Spring Term, 1869, of said District Court a judgment
Under the law as it existed in 1869, the County Court was authorized to set apart to the widow and children of the deceased, if he had such, the homestead and exempted property. (Paschal’s Dig., art. 1305.) This gave that court the right to ascertain the fact that she was his lawful wife, and that certain of her children were his- heirs, and to make the order thereon setting apart the property. That was an adjudication of that fact by a competent court, having jurisdiction of the matter, as pertaining to the estate of William Oldham, then being administered in said court. That order conclusively established that fact in any other suit or proceeding in which it was or might be involved, or be put in issue, until set aside by appeal or certiorari, directly, and not collaterally, attacking
Where there had been an order of the County Court distributing an estate, and this remedy was resorted to, Chief Justice Hemphill said: “ The proceedings are to be revised and corrected. They are not final, in an appellate sense, until after the lapse of two years. This judgment may be reversed or reformed as the law may require, and the property redistributed according to the very right of the parties to the cause. Any rights which may have grown up under the judgment of the County Court prior to the supersedeas, cannot be disturbed; as, for instance, rights claimed through public sale under the judgment, &c.” (Dunham v. Chatham, 21 Tex., 249.) This case, for the revising of said order of the County Court, was not tried and determined in the District Court until the September Term, 1874, several years after the injunction suit brought b.y Teaff & Thompson had been determined, and the judgment therein executed, in favor of Phillis and her children. It is not shown that there have been any rights of third ¡Demons' intervening, in reference to this
It is contended, by counsel for the plaintiffs, that although in the cause pleaded as res judicata she is not adjudged in express terms to be the widow of Oldham, that fact was adjudicated in her favor' by the judgment that was rendered, decreeing the homestead and other property to be held by Teaff & Thompson as tenants of her and her children, to pay them rents, and to turn over to them the said property at the end of the year 1869, they having claimed it in said suit by cross-bill, upon the sole ground of tire fact, which was put in issue in said cause, that she was such widow.
To determine the correctness of this position, and the force of it in the determination of this case, it is necessary and proper to look into the pleadings of the parties and the judgment rendered in that suit, which exhibit the manner in which it was tried. (Cook v. Burnley, 45 Tex., 97.)
If that is done, it will be found that they (the present plaintiffs) obtained that judgment in their favor by pleading that it had been adjudicated by the order of the County Court, rendered in January, 1869, that she was the widow, and the two children joined with her were the heirs, of William Oldham, and upon that alone, and not upon a trial or deter
Hot so, however, in rendering a judgment upon the merits in their favor upon “ bill and answer.” In that case, the judgment must be rendered, and was rendered, upon the facts alleged on one side and admitted on the other, upon its being assumed by the court that the other facts disputed, and issues raised thereby, were immaterial and ineffective, however they might be determined if submitted to a jury, to vary or control the legal effect of the facts admitted, or taken as established by the court without being submitted to the jury.
In the petition of Teaff & Thompson for injunction, it is stated that they had rented the whole of the farm, and stock, and farm implements, pursuant to an order of the County Court of Burleson county, made in 1868, and that after-wards Phillis Oldham and her children had applied to the said County Court and had obtained an order of said court setting apart to them a part of the property which they had rented, to wit, the homestead and other exempt property, upon their representation that she was the widow and they the heirs of William Oldham, which they deny to be true, alleging that said William Oldham was a free white man, and said- Phillis and her children were formerly the slaves of
In another part of the said cross-bill, they allege, “ that by virtue of said decree they are entitled to the possession of said homestead and exempt property, or to the rents and profits produced by the same,” and pray for a decree to that effect. In no part of the cross-bill is the claim made to the homestead and other exempt property by virtue of the fact of her being the widow and her-children the heirs of William Oldham, as an independent fact, to be established otherwise than as it had already been established, by and through this order of the' County Court.
The administrator having been made a defendant, filed an answer, denying that the District Court had jurisdiction of the matter, denying the sufficiency of the cross-bill and the facts stated in it, aud pleaded that the said order had no validity, because he had obtained a certiorari and supersedeas removing said cause to the District Court. This general denial of
The judgment was rendered upon the facts admitted to exist in the petition and cross-bill, to wit, the rent contract, and the order of the County Court setting apart the homestead and other exempt property; and upon these alone, aided by the finding of the jury upon the only matter submitted to them, of the value of the rent of said property for 1869. The judgment itself shows this.
The judgment recites that it was rendered “ upon a full hearing of the bill, answers, and arguments of counsel,” and “upon consideration thereof,” and describes the property which it was adjudged that Teaff & Thompson should retain, as tenants to her and her children, for the year 1869, and turn over to them at the end of that year, as being that which was “ set apart by the. decree of the Probate Court of Burleson county, rendered at its January Term, 1869, to the defendants, as a homestead out of the estate of William Oldham.” By this, as. well as by the matter decreed, it is demonstrated
The tacit assumption made by the court, in rendering the judgment, that' there was such an order, although it was denied by the administrator, and the assumption that it was then in force, although its validity was denied by the administrator in his plea alleging that he had superseded it, do not conclusively establish, as against the administrator, that it is to remain in force against this proceeding to revise and correct it. Its existence an'd then subsisting validity was assumed by the court, in reference to the trial of that case; and if this tacit assumption had been expressed in the judgment, it could have amounted to no more than a declaration of adjudication that there was such an order, and that it was then valid for the purposes of that decree, notwithstanding the obtaining of the certiorari and supersedeas, as pleaded by the administrator, which if contained in the judgment would not conclude the administrator from resorting to this remedy to set aside the said order. For, suppose that this issue had' been tried, and it had been shown that no valid supersedeas bond had been filed, then it must have been found against the administrator, and it would have been declared in the judgment that the order of the County Court was then still in force. It can have no greater effect, by the court having tacitly assumed and acted on it as being then in force, though erroneously, without the fact of its having been superseded having been tried.
If, then, that order of the County Court could be used as res judicata in that suit, and on it alone to procure a judgment in favor of plaintiffs in that suit, and then that judgment so. procured be used as res judicata in this suit, it would have subserved the purpose of defeating the jurisdiction of the District Court as a court of appeals, and prevent its action under the statute in revising and correcting said order.
The rule as laid down in reference to cases generally, is that “ it is not necessary to the conclusiveness of the former
On a trial under a plea of res judicata, in a case like this, it is proper to look to the pleadings and judgment in the former suit, to ascertain whether the exact matter in controversy was decided, or necessary to the decision; and where that is doubtful from the face of the record, it is competent to resort to evidence aliunde to ascertain it. (Cook v. Burnley, 45 Tex., 97; Bledsoe v. White, 42 Tex., 136; Cromwell v. County of Sac., 4 Otto, 351.)
Errors were assigned to the judgment rendered in this case, because it provided for the return of the personal property, and for its value, and the value of the use of it pending the suit.
In the trial of such a suit, the proper judgment would ordinarily be that the order of the County Court should be set aside. The case having been continued several terms of the
There were no exceptions taken to this amendment; the trial was had and judgment rendered in reference to it; and no objection was specially made in the motion for new trial, or otherwise, in the court below; and there is no point made upon it in the brief of counsel; and, therefore, as it seems to have attained the ends of justice in the case, it is unnecessary for this court to make a special inquiry into the propriety, as matter of practice, of joining the two remedies in the same proceeding. It at least has the merit of having settled the whole matter at once, and in a way that certainly no injus-. tice has been done to the parties, so far as anything appears in the record of this case. ■
Judgment affirmed.
Affirmed.