Snow v. Walker

42 Tex. 154 | Tex. | 1874

Beeves, Associate Justice.

The plaintiff and the defendants in error both prosecuted writs of error from the iudgment of the District Court, with separate assignments of error for reversing the judgment.

Plaintiff’s first assignment is understood as referring to the ruling of the court updn his exceptions to the amended petition, and so considering it, we are of opinion that the court did not err in overruling the exceptions.

2. It is further complained that the court erred in ruling that the minors, who were plaintiffs in the District Court, were not estopped by their acts.

3. The court erred in finding for part of the plaintiffs, whereas it should have found for defendant.

There is no appearance in this court for plaintiff in errot, and we are left to conjecture as to the acts of the minor plaintiffs, from which it might be contended that they were estopped from asserting any right they may have had in the estate of B. H. Temple, deceased.

It is not pretended that the promissory note, the subject matter of the suit, was necessary for the payment of any demands against the deceased, or that these minor plaintiffs were barred, or that they could be deprived of their share in this note or its proceeds by any law of limitation. It was admitted on the trial that the promissory note in controversy was executed by the plaintiff in error, and that the minor heirs and the other parties who were plaintiffs in the District Court are the heirs-at-law of R. II. Temple, and that they are interested in his estate. These facts being admitted, and also that these parties are minors, it was incumbent on the defendant, Snow, to prove such further facts as would be sufficient in law to defeat their ■claim to an interest in the estate of E. II. Temple, or, in the proceeds of the note, by establishing a better right in himself or in the party he claims under. This he attempts to do by the agreement entered into with Mrs. Nichols, one of the plaintiffs in the suit, and the mother of the minors, for the settlement by arbitration of the then pending litigation in the County Court between the plaintiff, Snow, and Mrs. Nichols, and in which it was stipulated that Snow’s note to Temple’s estate was to be taken into the account. Whatever may be the effect of this agreement, and the award of the arbitrators, and the judgments of the Cou'nty Court, as between the immediate parties, and as to others capable in law of contracting, and who may have consented to that mode of settlement, the settlement was without force as to the minor heirs, and imposed no obligation upon them. It appears that Mrs. Nichols had been appointed administratrix pro tem. of Temple’s estate, though there is nothing in the agreement or the subsequent proceedings founded on it to warrant the conclusion that she was acting in that capacity in the arbitration. It is not material to inquire in what capacity she may have acted, as the agreément was without force as to her minor children, and it does not nor did she assume to bind them. It is a fair inference from the terms of the agreement that the note in question was not in her possession at the time the agreement was entered into. She stipulates “to procure the note and to release Snow from any liability^ for the same other than said arbitrators may find due thereon, and to have the same delivered up to said arbitrators to be canceled.” It is apparent that the plaintiff in error regarded Mrs. Nichols alone as the party who should be responsible to him for any failure to comply with the terms of the agreement, and not the minor heirs. The note was payable to Stephenson, as administrator of Temple’s estate, and therefore it could not be contended that the plaintiff in error was ignorant of the fact that he was dealing with the property of the estate of Temple, and also that he was contracting with a party who had no legal right to control the note beyond her own share in it, and to the prejudice of her infant children.

The share or interest of each one of the defendants in error was admitted on the trial, for which the court rendered judgment for them, and in this there is no error.

The District Court further decreed that the adult plaintiffs in the suit, Susan Nichols, W. T. Nichols, H. T. Moore, and V. A. Moore, take nothing by their suit. From this judgment they prosecute their writ of error. The errors assigned and by them relied upon for a reversal of the judgment, consist of the action of the court upon exceptions by the plaintiffs to the defendant’s answers. The defendant plead the agreement between himself and Mrs. Nichols, and the award of the arbitrators, and the judgments of the County Court in estoppel, in bar of the.plaintiff’s suit in the District Court,.

The judgment of the District Court recites that the “ exceptions to so much of the answer as sets up the arbitration, the award, and the judgments of the Comity Court thereon, in so far as the same affects the interest of the heirs of the said R. H. Temple, who were at that time minors, are sustained, and in so far as the same affects the interest of the said Susan Nichols, are overruled, and in so far as the same affects the other heirs who are not minors, are overruled, to be finally disposed of after the testimony is heard upon the plea of estoppel.” The other exceptions were overruled. The ruling of the court on the final hearing has been referred to.

The defendant, Snow, introduced in evidence th.e proceedings of the County Court of Kaufman county, as shown by' plaintiff’s bills of exceptions. The rulings of the court admitting in evidence these proceedings, and the exceptions of the plaintiffs to defendant’s pleading, and the judgment sustaining the defendants’ pleas in estoppel as to the adult plaintiffs, are assigned for error as the grounds for reversing the judgment.

The authorities cited in the brief of counsel for these parties are not regarded as applicable to this ease. The judgments of the County Court were each for a sum within the jurisdiction of the court.

It is not necessary to inquire how the amount due from one party to the other was arrived at. The parties themselves might have made the settlement, instead of submitting it to arbitration. The County Court did not take jurisdiction over the settlement, but after it was made the parties appeared, by their attorneys, and the judgment was entered up, without objection, in each of the cases, all in favor of H. J. Snow and against Mrs. Nichols for a sum over which the County Court had jurisdiction, and corresponding in the aggregate with the amount awarded to plaintiff in the suits. The adult plaintiffs, except Lewis Felts, had notice, and consented to the proceedings in the County Court, as admitted on the trial, and the judgments were acquiesced in for some time after the rendition, as appears by the payment made by Mrs. Nichols.

The plaintiff, Lewis Felts, who did not consent to the settlement in the County Court, recovered the shares of his deceased wife, and his right to recover in the capacity in which he sues is not questioned by the other parties, and is not considered in the disposition now made of the case.

We are of opinion that there is no error in the rulings and judgment of the District Court, on any of the grounds assigned by either party, and the judgment is in all things affirmed.

The application for damages on defendant’s suggestion of delay is refused.

Aeeirmed.