Parker v. Miller

point hands; par- making the' in to ties, instead of heirs clean with unto necessity action of forci- there for adminis- for an since who is liable of law one wrong recovery, plaintiffs’ estate, entry if has a taint of tration of as a ble and detainer right, had, exempt him, as a matter from claims about entitled cery. sence of is of chan- a court interference of creditors. granted in the ab- relief be will the <&wkey;>3(l) 2. Executors and administrators —No mistake, any allegations fraud, ac- necessity is where estate for administration surprise.” .cident exempt. Rodrigues, Willson, Lopez is of an Where In v exists.. is § Cas. said: Ct. jurisdiction grant <&wkey;>l75(l) “But this court 3. held Witnesses —Defendants grant prayed for, be- it would not the relief testify titled where on former trial. transactions with deceased petition show sufficient cause the does power. the exercise of to authorize extraordinary equitable remedies Such cannot be resorted in, In an action to set aside a deed which to, of, when the and availed original plaintiffs defendants filed plaintiffs making death of complete party «seeking a them has full legal remedy rem- law. this case such them the substituted appellant. edy He is afforded testimony of introduced the waste, damages, trespass, his action plaintiffs at a former profits, is action or mesne prohibited St. Rev. proceedings in the affected barred or testifying to the same transactions and eonver- forcible detainer suit.” n sations of the deceased. may enjoin the en- If the district judgments in <&wkey;>44(-l) rendered forcement of 4. New abuse of discretion trial —No refusing grant justice peace in suits of in trial. new courts of entry detainer, upon the deed, forcible In an action to set aside discretion, losing party did not its in Rev. title to the view that the grant refusing object St. art. trial court, new property in such district alleged the foreman entry and detainer statute of the forcible jury, making where he denied liable to be defeated. hearing it. Turman, 53 Texas Land As said <&wkey;l4i)(3) Tex. 619: New seek- 5. trial —Burden allfeged trial to show that miscon- * * * how val- illustrate “The cases injury. operated to . duct remedy summary becomes ueless transferred united, trial Where on account of to the district the burden an action of as * * * party seeking practical try to show trespass result will tion will tice’s, title. injury. such misconduct be, the ac- instances jus- courts, four travel Supreme.” district, county, &wkey;>207, 1060(1) 6. —Re- where districts add error, And held marks fundamental but courts, year the liti- but twicfe meet not reversible years. gation may pending for ,In to set an action aside a where dur- judgment expressed, is ing argument Eor the reasons defendant’s interrupted plaintiff’s asked him affirmed. if he did know that a former one contrary to his present testimony in the there no evidence that such was (No. 6618.)* et al. et v. MILLER al. PARKER error, true, being such remarks fundamental (Court Appeals could after- of Civil Texas. Austin. interrogated, Rehearing wards be view of Rev. St. art. Oct. 1923. Denied effect, 17, 1924.) to discover their Jan. not constitute reversible where ¡&wkey;438(8)— administrators I.Executors impeached, testimony and, regardless of such witness misjoinder parties by No ad- plaintiffisparty ministrator to suit. counsel, decided the is- prop- way homestead was the did. sue other than the erty had, sued to &wkey;>38(l)Finding convey- Mortgages 7. — being mortgage, thereof aside operate an absolute deed sus- ance was to plain- death of which suit tained. against plaintiffs’ tiffs, filed a cross-action chil- conveyance only parties to set dren asking that it was intended for title to the land involved misjoinder loan, suit, held to a find- sustain operate evidence that the have been that an administrator should estates, pointed party absolute deed. and made Digests Key-Numbered and Indexes KEY-NUMBER in all topic see cases <®^>For b, March *writ of error of of deceased parents they Tes.) taining ary Belton, for troduced to Russell was fendants wife joinder trator erine Parker to the suit parties by and wife F. from involved against brought M. B. trial term of said and that he time to set aside to Russell ranty scire them for tried a original plaintiffs, two dered firmed. sition sisting should en, as transcribed ty, against A. B. Curtis Suit Tyler, BAUGH, Temple, M. Miller and error wife, prosecution defendants, mistrials, 2] plaintiffs both merely to conveying Blair, judgment for of Appellants urge state them. F. M. by Hubbard, no action by agreement. The trial court filed, November, 1921, in this. conveyance from Parker and wife P. M. against parties. 87.45 acres of land April 14, was intended as a special appellants. and not as a agreed with the conveying Thomas' J. the suit. The Judge. instead must plea, a second appointed estates of Miller appellees. to A. deed from V. District only an and Winboum facias. Miller of a Miller, dated addition to carry V. Bussell continued V. Opinion. wife, that it was It is the in order Monteith & seasonably asked §how They issues. passed defendants. A. 1920,by plaintiffs possession of the land term convened their knew the properly Thomas Russell, Court, and made a insist that the case Thomas prior died mortgage. others. erred brought by their setvaside reporter, well-settled law homestead, plaintiffs at the loan; Thomas n made, Dougherty, ,and another intended intestate. Bell submitted to Pearce, both former January 14, dated Janu- Russell and their death first in their heirs proceed PARKER MILLER of Russell Bell coun- originally Miller, on pleadings, mortgage, Judgment the third been wife and also case had adminis heirs of County; heirs, was in- pellants a deed the de- propo found again Cath war- such- mis- con- tak- ren- sus gnd (258 Af- by of - ;.w.‘) that no administration was transactions no other had was . numerous authorities. Revised the Revised Civil Statutes. undisputed only ground Wade v. every protection has been and should be voices the defendants the same testify concerning and Mrs. F. Miller duced the court erred in fendants, 3690, has been the law have the scire action was such persons. Having ists, and it tion at the first term of the were lowed thrown around transactions with those whose alone, recovered heirs free from claims of-creditors. Davie v. er the death of both Thomas Parker and Catherine Parker tiations after death of the evidence the heirs work article 3690 of the Revised cannot case, however, Green, attacked additional dealt with The heii’s Saenz necessary. -ease, appellees former trial properly proceeded exempt property. facias, the statute and has and that are stilled times. 63 would establish spirit (Tex. leading up Scott against you. conversations and and all the to one great in order to way. Having their Tex. Civ. prove then made the heirs expense. that travesty decedents deny would the deceased it would (Tex. been fact an defendants Its appellants. recovery A.Y. homestead, provided this concerning repealed second the truth admitting App.) 149 decedents had with Thomas Parker administration original plaintiffs, purpose made out their to them had be futile to incur that construed Rivera v. statute only property plaintiffs toas case it properly proceed To do so as would be original, plaintiffs, . both attempt grim reaper. have otherwise. appellants’ case, Even had introduced all this ' in article of conversations below, transactions and S. W. necessary. Indeed, itself; this which, They that those S. W. 132 clearly appears an passed with deceased 145 A., Statutes, district F. M. falsity such case to obvious, claimants al would enable taken no ac- conveyances S. W. state since that &T. entitled mortgage plaintiffs who ease, violative pending possible .is of both the de- In this trans- intro citing taken given Cohn nego their 874; S. F. 603 you aft ex- ap by tion for a new conversations tes had several Belden, question timony before the of tbe Runnels v. deceased. - Brown, 61 Tex. misconduct of the undertake to O’Neill v. seek discover Marshall et al. v. assignments remarks of counsel any them in 212 S. W. 723. These influenced arriving manner in their verdict. are overruled. appellants al- it so their fourth Had influenced the 5] In jury ready arriv was the before the court the verdict claim that ed of part trial, in their for a new think motion at one juror plaintiffs’ easily One shown number. counsel of their fact; appellants’ a new hearing motion that should have sence of in which the trial court events fore the in their deliberations a new trial. the ab- testified that man take right things to not be not that it would we do think remarked these away and man white property met the from has rule laid counsel the down testimony, negroes’ negro appellant give to advan- it to take tage in ar appeal. influenced such error such jurors denied riving But, this, All from do not think that at a verdict. by appellees’ and the foreman the hearing the remark made presence such counsel jury remark. the such such was of grant vests minds or inflame to Revised jury .discretion the counsel becomes influence them. Where sound or trial in the a .new argument, only vi- cases where abusive the trial discretion the action rights of tuperative, in evi- or been abused discusses not has preju- necessarily disregarded trial court’s in such manner to dence dice the will Ry. jury probably appeal. & V. T. B. minds of be reviewed objection App.) no 194 S. W. Geary thwart made at the v.Co. time, appellate Virginia court v. Co. Co. & M. Ins. F. exception Parrish make Kaker to v. 173 S. W. 517; Ry. not the in- v. do think correct the stant case We 187 S. W. presents exception. Gray, The such S. improper question Campbell (Tex. to went impeachment witness, on account matter of trial is a new And where plaintiff. wit- jury cm burden is who was also This of misconduct the show such ness, al- impeach to seeking 'had material to ready Lynch his in Will to jury Campbell. Parrish, We above. and Chas. jury. If Kaker discharge witnesses, appellant these did believed two disinterested testimony anyway, instance, no Parker’s disbelieved find that burden prepared so we that even in over to discretion jury by shown, improp- the er was influenced counsel’s ruling plaintiffs’ The for new trial. remarks, appellant assignment overrüled. injured, has proposition is that it was third And, though the remark of counsel done. defendants’ counsel dur- reversible clearly argument was such it was closing inflammatory, prejudicial, impressive presence hearing jury passion character as calculated to arouse interrupt plaintiffs’ counsel and if he ask or prejudice in the minds in- did on a former not know that trial one arriving fluence them in at their verdict. directly contrary had testified this, the absence of and because of the fail- this trial appellants objection proper ure of being no evidence in the rec- time, the a it at their mo- ord that such was true. tion for new trial that the fact was in plaintiffs’ counsel to whom remark was thereby, influenced ror we must hold that the er- participated addressed in the former consequence as to re- undoubtedly trial' proper case. This was im- quire reversal case. part conduct on the of defendants’ of the trial court is affirmed. fact counsel. If in differently proper man- getting ner of before towas appellants’ introduced the former ,[6] rehearing Since get him.' It was error to seek was filed a has member of this court matter otherwise. How- been added our succeed lamented Chief ever, Key. it fully was made Justice We have therefore by plaintiffs’ time, jury carefully especial regard request counsel at the reconsidered the entire record with with refer- to the matter misconduct same, complained ence to bill of plaintiffs, pellants, served. in their mo- in' stressed motion. made time to perhaps withstanding er the remark character as jury against knew little about ous instruments tain what clusion that the er and Parker was sel’s remark Zimri died. Other than the dence- sustains the record, improper wards Miller. Zimri the transaction V. A. tirely ing Article made to ticle. induce us in fact verdict. This Tex.) tion for proper reconsideration ferent conclusion correction ceived es of could they of the erred There is disposition Guidry (Tex. to their testimony overwhelming opinion and no Upon have ascertained her not consider the matter to which coun to the matters mentioned provisions And, wife, Catherine, conduct of 2021 of cannot be considered as influence them who became a remark of them before our interrogated. husband, practically verdict, others, request made trial court. , court to our former flatly concerning it, referred, testimony,” “because further of the case. A careful reread change statement E. M. which the Parker between leads great preponderance, involved," plaintiff Tom, calculated preponderance, Revised on this complained of, except contradicted or because the discredit his have concluded that Tom Parker, it does our reconsideration as to hear execution disregard Catherine, or the knew and their opinion, leads us to the con statute, or as perhaps well stated Zimri we complained was to. the trial Statutes arriving at vital to the facts consider point, testimony father and V. A. Motion overruled. authorized during bring 229 S. authorize somewhat communication nothing for new of Tom Park- testimony coming been of made on their mo- jurors, confined but does not it. not the im- Mrs. PARKER . MILLER in this ar- son, and Zimri of such appellants place it within told the vari- the case authoriz- that an Though that of to sus- except are of if not of did either Zimri bell, F. M. did decide after- being prop with- hear- Vogt to a her. conduct of counsel not evi dif- (258 3.W.) do. notes, re- y¡m i paid uncontradicted their were Three Miller. what of these tract jury, ity, mark to the witnesses of Dr. J. Tom executed and that up either discloses that ly er to the then after later released they paid Russell time he also executed sell addition reputation er testified that Russell had various and Russell second executed fied With‘such a It is also impeached is therefore overruled. have decided the then place, was a bona made that he careful was also Jennings, instruments .the time regardless also uncontroverted claimed Parker had told them after either rendered fully explained with Miller the*matter acknowledgments land; Tom aggregating claimed that disinterested’ witnesses lien had the Though sums it was owned either had an taxes explained various entered In addition to done it. Parker tried Tom Lynch uncontroverted'that, deeds that Tom turned rereading affidavit preponderance of truth thereon, that Tom suit was thereafter contradicted a disinterested of what effect the attorney interest instfuments IS disinterested witnesses. to which fide into written quitclaim he land that he the time of $1,000. Lynch time Russell they over cotton to subsequently addressed, in issue conveyance, bank examined, paid and Catherine money; Parker. G. W. Cantrell. filed testified veracity Parker Miller. $3,400 three this, had sold his have had on the examine place. and M. notary who took These notes Miller, the record one issue deposited not remember advanced or that witness, Tom Parker’s impeached by for taxes the execution testified the credit C. vendor’s lien deed the evidence he $486.65-, never there- rental con- Tom Park- bought land; than to Miller Miller, regularly probabil- paid the title he to him. to Rus- rehear- at that Parker Camp- direct- place, Park- time. off place testi- crop, Rus- also also nor off,

Case Details

Case Name: Parker v. Miller

Court Name: Court of Appeals of Texas

Date Published: Oct 31, 1923

Citation: 258 S.W. 602

Docket Number: No. 6618. [fn*]

Court Abbreviation: Tex. App.