Wiseman v. Cottingham , 107 Tex. 68 ( 1915 )

In the year 1906 T.A. Cottingham purchased from James P. West a tract of land comprising twenty-five acres situated in Wilson County, paying $150, cash, and executing a vendor's lien note for $125, the balance of the purchase price due October 1, 1907. The note was thereafter assigned by West to the plaintiff in error, Mrs. I.E. Wiseman. Cottingham died, and J.R. Cottingham qualified as administrator of his estate under appointment of the probate court of Bexar County. In the fall of 1907 Mrs. Wiseman presented the note as a claim against Cottingham's estate, and it was so allowed on December 4, 1907. She at that time only held the note and lien. The note was not paid because the estate had no funds available, nor was any sale of the land had for that purpose in the course of the administration. Thereafter, on January 14, 1909, Mrs. Wiseman acquired the superior title to the land; and, with the note past due and still unpaid, on February 26, 1909, instituted a suit in the District Court of Wilson County for the land against J.R. Cottingham, administrator of the estate of T.A. Cottingham, and individually, W.H. Cottingham, two of the heirs of T.A. Cottingham, and the unknown heirs of T.A. Cottingham, alleging the non-payment of the note and that, as its owner, she had exercised her option to abandon the note and recover the land as the holder of the superior title. J.R. Cottingham and W.H. Cottingham were each personally served with citation, and due service by publication was had upon the unknown heirs. J.R. Cottingham and W.H. Cottingham made default. A guardian ad litem was appointed by the court to represent the unknown heirs, who interposed in their behalf a plea of not guilty. Upon the hearing judgment was rendered on December 22, 1909, in favor of Mrs. Wiseman against all the defendants for the land.

On October 11, 1910, Mamie Cottingham Chambliss, joined by her husband and Clive Cottingham, one the niece and the other the nephew of T.A. Cottingham, and representing in interest one-seventh of his estate, filed their bill of review in the District Court of Wilson County, seeking to have vacated the original judgment rendered in Mrs. Wiseman's favor. As grounds for such relief they asserted, in substance, that they resided in North Carolina and Missouri, respectively; that they had no previous knowledge of the pendency of the suit, and were not bound by the judgment because not personally served; that Mrs. Wiseman had obtained the allowance against Cottingham's estate of her claim represented by the $125 vendor's lien note; that the full amount due upon the note was $193, which, prior to the filing of the bill, they had tendered to Mrs. Wiseman and which had been paid into court for the purpose of satisfying the note; that they were entitled to have Mrs. Wiseman accept the amount due upon the note and were willing to pay her the full amount due in satisfaction of her claim for the protection of their interest in the land, which had increased in value and was worth the sum of $1000. J.R. Cottingham and W.H. Cottingham were not parties to the bill of review. On hearing, judgment was rendered in accordance with the prayer of the bill, vacating the original judgment entirely, requiring Mrs. Wiseman to accept $205.80, the principal, interest and attorney's fees due upon the note, then in the registry of the court, and a further sum amounting to all the costs, and decreeing the land to the plaintiffs for the benefit of all the heirs and the estate of T.A. Cottingham. The judgment was affirmed by the honorable Court of Civil Appeals, and its correctness is the question presented for decision.

The proceeding was under article 2096, which provides that in cases where judgment has been rendered on service by publication a defendant not appearing may obtain a new trial for good cause shown upon a sworn application, filed within two years after the rendition of the judgment. It was but a continuation of the original suit, and did not possess the character of an independent action in equity to review the judgment. While the petition was styled, under the statutory term, as a bill of review, it amounted to no more than a motion for new trial, permitted in such cases by virtue of the statute, to be filed and heard after adjournment of the term. Mussina v. Moore, 13 Tex. 7 [13 Tex. 7]; Miles v. Dana, 13 Texas Civ. App. 240[13 Tex. Civ. App. 240], 36 S.W. 848; Glaze v. Johnson, 27 Texas Civ App., 116, 65 S.W. 662; Wolf v. Sahm, 55 Texas Civ. App. 554[55 Tex. Civ. App. 554], 120 S.W. 1115; Fred v. Fred,126 S.W. 900. While it is provided by article 2027 that in such cases the petition shall be filed and service of process made upon "the parties adversely interested in the judgment," it was not necessary that J.R. Cottingham and W.H. Cottingham be made parties to the proceeding and be served with process. Their interests were not adverse to those of the parties seeking the new trial, but were in common with them. Relief against the judgment was sought for their benefit, as well as heirs of T.A. Cottingham.

Mrs. Wiseman was not, in our opinion, concluded in her right to sue for the land because she had previously obtained an allowance of her claim represented by the vendor's lien note in the administration of Cottingham's estate, upon the theory, as held by the Court of Civil Appeals, that she had elected that remedy and, therefore, could not pursue another. The rule of election of remedies has application only where the party against whom it is invoked has two inconsistent remedies at his disposal at the time of the supposed election. It could not reasonably have force where at that time he pursued the only one available to him. When Mrs. Wiseman presented her claim upon the note for allowance in the administration of Cottingham's estate, she did not hold the superior title to the land and could not have maintained a suit for the land. She only held the note and lien, and her only remedy, therefore, was upon the note. The record shows that the estate was without any funds to pay the claim; and after it had remained unpaid for more than a year after its allowance, she acquired the superior title to the land from West, the original vendor, and then, abandoning her claim upon the note, brought suit for the land as the holder of such title. Under these circumstances she was clearly entitled to assert her subsequently acquired title. Ballard v. Carmichael, 83 Tex. 355,18 S.W. 734.

In the suit for the recovery of the land Mrs. Chambliss and Clive Cottingham, for themselves and the other heirs of Cottingham, would have had the undoubted right to tender to Mrs. Wiseman the amount due upon the $125 vendor's lien note, and thereby defeat her action. It was a defense, the presentation of which would have resulted in the rendition of a different judgment. They were denied the opportunity of making it through no fault of their own, as it does not appear that they had any knowledge of the pendency of the suit. Upon its assertion, therefore, and the tender into court in this proceeding of the amount due upon the note, sufficient cause was shown for the award of a new trial upon their petition. A liberal discretion should be employed in the granting of a new trial under this statute. It is plainly authorized where it appears that a defendant cited by publication has a good defense to the suit which he was denied the opportunity of presenting, and his application is made in accordance with the statute.

Under our practice the granting of a new trial upon the motion of one of several defendants vacates the judgment as to all of them. Berry v. Garnett, 45 Tex. 400; Wooters v. Kauffman,67 Tex. 488, 38 S.W. 465; Railway Co. v. James,73 Tex. 12, 15 Am. St., 1043, 10 S.W. 744. The effect, therefore, of the award of a new trial upon the petition of Mrs. Chambliss and Clive Cottingham was to set aside the judgment as to J.R. Cottingham and W.H. Cottingham as well; restoring the status the case had before the rendition of the judgment, and leaving the issues to be determined anew. Under this situation it was competent for the court to allow the defense presented and render judgment accordingly.

The judgments of the Court of Civil Appeals and the District Court are affirmed.

Affirmed.