Knight v. Waggoner , 1919 Tex. App. LEXIS 963 ( 1919 )

This suit was brought by appellant, Olga V. Knight, as guardian of the estate of Mrs. C. E. Rogers, a lunatic, against appellees, W. T. Waggoner and Joe Terry, to recover certain land in Wilbarger and Wichita counties. The suit was filed in the district court of Wichita county on February 6, 1911, and is numbered 4043 on the docket of said court. In addition to the regular allegations of a suit in trespass to try title, plaintiff specifically sought to set aside a conveyance of said land made by the said Mrs. C. E. Rogers to Joe Terry, dated March 6, 1906, and a judgment of the district court of Wichita county dated January 31, 1907, rendered in cause No. 3607, in favor of the said W. T. Waggoner and against the said Mrs. C. E. Rogers for said land and confirming said deed. Plaintiff alleged that the said Mrs. C. E. Rogers had been for a long time prior to the sale of said land and up to the time of the trial of the present suit continuously insane; that she was incapable of making a valid contract for the sale of said property; that this fact was known to the said W. T. Waggoner and Joe Terry, but said persons, for the purpose of procuring the title to said property for less than its true value, and in a manner not authorized by law, procured said conveyance from said insane person to be made to the said Terry upon an insufficient consideration; that the said Terry was acting for the said W. T. Waggoner in such matter, and on the same date of conveyance from Mrs. Rogers conveyed said land to said Waggoner, who in fact paid the consideration therefor; that the said W. T. Waggoner on October 12, 1906, as a part of the said plan to acquire said land and to cover up the fraud by judicial sanction, instituted said suit No. 3607, and procured judgment to be rendered therein; that the plaintiff in said suit fraudulently and falsely represented to the court that Mrs. Rogers was sane at the time of the conveyance by her, and that the sale was in all things fair; that upon said hearing L. H. Mathis was appointed guardian ad litem for Mrs. Rogers; that he was disqualified from acting by reason of being interested in said suit, and made no defense thereto, but judgment was entered upon admissions made by the said guardian ad litem upon hearing of said cause. The plaintiff tendered to the defendant Waggoner the amount paid for said land. The defendant, in addition to exceptions and general denial, pleaded res adjudicata, setting up in detail in support of this plea the facts as we shall hereafter state them.

Upon trial the court instructed the jury peremptorily to find for the defendant; this charge being "founded upon his conclusion that no testimony whatever has been introduced tending to raise the issue of fraud in the rendition of the judgment in cause No. 3607."

Evidence was introduced upon the trial that would have warranted the jury in finding the following facts: Mrs. Rogers conveyed the land to Joe Terry by deed dated March 6, 1906. Terry on the same day conveyed the land to defendant Waggoner, who was in fact the purchaser from Mrs. Rogers. The deeds from Mrs. Rogers to Terry and from Terry to Waggoner were in the handwriting of L. H. Mathis, and the acknowledgment of Terry to the deed made by him was taken by the said Mathis. The consideration from Waggoner was paid to Mathis for Mrs. Rogers, and he received a commission of $150 out of such proceeds. Mrs. Rogers was at this time, and had been for several years prior thereto, insane, and this fact was known to the defendant Waggoner. The land was worth from $5 to $10 more per acre than the price paid for it — $10 per acre. Mrs. Rogers, after the sale, did not vacate the premises, and on October 6, 1906, Waggoner filed suit, No. 3607, against her for the recovery of the land; the petition being in the regular form of trespass to try title. No mention of the insanity of the defendant was made in this pleading, but on January 23, 1907, plaintiff's attorney suggested to the court that the defendant was insane; whereupon the court appointed L. H. Mathis as guardian ad litem for Mrs. Rogers. Plaintiff's attorney testified that he did not remember that he suggested that Mathis be appointed, though he knew that such attorney had been representing Mrs. Rogers in certain transactions, and he may have done so. On January 31, 1907, said guardian ad litem filed an answer, setting up the fact that the defendant still had on hand "the entire proceeds of the sale to Joe Terry, less certain small amounts actually used by her for the necessary expense incident to the consummation of the sale of said land"; that the defendant at the time of the answer was of unsound mind as to certain subjects, and should not be intrusted with the exclusive possession of said money; that the sale of the land to Terry was a fair transaction; that the defendant, at the time, understood the nature and consequences of her act therein; that she had received the reasonable value of said land; and that it was to her best interests that said sale should be confirmed. In a supplemental petition replying to this answer plaintiff alleged that Joe Terry purchased the land, paying full value therefor in good faith, believing defendant was sane, and that after Terry procured the deed he sold the land to plaintiff. In this pleading a statement is made of the amount paid Mrs. Rogers and the disposition she had made of the same, and it appears therefrom that the "sum of $150 was paid to L. H. Mathis as a commission on the sale of said land, he acting as agent for the defendant." Plaintiff again prayed that he recover the land, or in the alternative that he have judgment for the money paid defendant and it be decreed to be a lien on said land. On the trial of said cause the deeds from Mrs. Rogers and from Terry to Waggoner were introduced, and the guardian ad litem made a verbal statement, whether under oath or not does not appear, to substantially the same effect as made in the answer filed by him. No other evidence was introduced, and on January 31, 1907, judgment was entered in which it was found by the court:

That "Mrs. C. E. Rogers was sane at the time of the execution of the deed to Terry; that said sale was in all respects just and fair and free from any fraud, and was made in good faith by the said Terry, and that said land was sold for its full and fair value, and that it is for the best interest of the plaintiff (it is apparent that the use of the word ``plaintiff' here instead of ``defendant' was the result of clerical error) that the said trade be not canceled."

And upon such finding judgment was rendered for the plaintiff. Appellant was appointed guardian of the person and estate of Mrs. Rogers, who was at the same time adjudged to be a lunatic, in February, 1910.

The facts on which appellee founded his plea of res adjudicata are as follows: There was a mistake in the entry of judgment in cause No. 3607, as rendered and entered on January 31, 1907, the land being described therein as section 92, instead of section 2, the proper description. After the filing of this suit, No. 4043, plaintiff, in cause No. 3607, filed a motion to correct said entry, serving notice of said motion on Mrs. Rogers, L. H. Mathis, guardian ad litem in cause No. 3607, and on Mrs. Knight, the legal guardian of Mrs. Rogers. On the hearing of said motion the court appointed M. M. Hankins guardian ad litem to represent Mrs. Rogers in such matter. The guardian ad litem so appointed and the appellant filed separate answers to said motion, though they were the same in substance. Following a general denial and plea of limitations, these answers set out in what is termed a "special answer" to said motion substantially the same facts as are alleged in the petition in this cause, and prayed that said deed and the judgment in cause No. 3607 be canceled and set aside, and that defendant recover title and possession of said land. In the answer filed by appellant the pendency of said cause No. 4043 was suggested, and the court was asked to consolidate the "suit to correct the judgment with said cause No. 4043." These answers were filed on July 18 and 19, 1911. No reply to the answer was filed by the defendant. On hearing of the motion to correct judgment these answers, in so far as issues were presented by the special allegations referred to, were apparently ignored. The only evidence offered on the hearing of the motion was as to mistake in the entry of the judgment, and on July 19, 1911, the court sustained the motion to correct the judgment in cause No. 3607, and entered an order to such effect. This order, among other things, recited:

"On this day came on to be heard by the court the motion hereinbefore filed by the plaintiff * * to correct the entry upon the minutes of this court of the judgment herein rendered on the 31st day of January, 1907, so that the entry upon the minutes of said judgment should conform to the judgment actually rendered by the court, * * * and the court, having heard said motion, the evidence introduced, the argument of counsel, and being fully advised as to the law, is of the opinion that said motion is well taken and should be sustained. It is therefore ordered, adjudged, and decreed by the court that the entry of the judgment rendered herein * * * be corrected * * * so as to hereinafter read as follows."

M. M. Hankins, as guardian ad litem for Mrs. Rogers, appealed from "the action of the court in sustaining said motion," and said action of the court was finally affirmed by the Supreme Court. Waggoner v. Rogers,108 Tex. 328, 193 S.W. 136.

We are of the opinion that the court committed error in giving the peremptory instruction for the defendant unless such action can be sustained on account of the facts set out in the defendant's plea of res adjudicata. The purpose in the appointment of a guardian ad litem is to secure the services of a disinterested person who will see that all matters affecting the interests of the party under legal disability are fully presented to the court. Cyc. vol. 22, p. 651; R.C.L. vol. 14, pp. 287-289. The guardian ad litem should make no admissions against the interest of the defendant, but should require that proper legal proof be made of the facts entitling the plaintiff to the relief which he seeks. White v. Joyce, 158 U.S. 128, 15 S. Ct. 788, 39 L. Ed. 921; Rankin v. Schofield, 70 Ark. 83, 66 S.W. 197; Ralston v. Lahee, 8 Iowa 17, 74 Am.Dec. 291; Chaffin v. Kimball, 23 Ill. 36; R.C.L. vol. 14, pp. 289-291; Cyc. vol. 22, p. 663. Whether the guardian ad litem appointed in this case was absolutely disqualified or not, we think it is true as a general rule that such representation of the person under disability in the investigation of the transaction by one so connected with it as was the guardian ad litem in this instance, would not be best calculated to develop that full and disinterested presentation of the rights of the ward that is to be desired in trials of cases of this kind. It is apparent that there was no real trial by the court in cause No. 3607 of the facts that determined the rights of the insane woman; these were really ascertained and determined by the guardian ad litem, and the court's judgment was based on his conclusions. We need not decide whether these facts, standing alone, would require a reversal of said judgment on appeal or the setting aside thereof in a direct proceeding, but when in addition it is shown that the defendant was in fact insane, that she did not receive a fair price for the land, that plaintiff knew these facts, but pleaded the contrary, and took a judgment on conclusions by the court based on false information as to the facts, we are of the opinion that sufficient ground exists for relief against the judgment. Day v. Johnson, 32 Tex. Civ. App. 107, 72 S.W. 426; Lumpkin v. Williams,1 Tex. Civ. App. 214, 21 S.W. 967; Cannon v. Hemphill, 7 Tex. 184; Swearingen v. Swearingen, 193 S.W. 450-452; Frieseke v. Frieseke,138 Mich. 458, 101 N.W. 632; Cooper v. Greenleaf, 84 Ran. 499, 114 P. 1086, 35 L.R.A. (N. S.) 1094-1096; 22 Cyc. 701.

We think it fair to the court trying said cause No. 3607 to say that the guardian ad litem's connection with the trade did not appear at the time he was appointed, and thereafter appeared only incidentally in a supplemental petition filed by plaintiff, and may never have been called to the court's attention. It should also, in fairness, be added that the evidence as to the insanity of Mrs. Rogers and the value of the land is not uncontroverted. The evidence is such that the jury could have found that the sale and its confirmation was a fair transaction. We have only detailed the evidence as it tended to support plaintiff's right to have the case submitted to the jury. But good faith on the part of the attorney and the guardian ad litem would not necessarily defeat the action. Such persons might be the innocent means of the perpetration of fraud by plaintiff.

We come then to consider the questions presented by the plea of res adjudicata. Two questions occur in the consideration of this defense: First, whether the judgment entered on the motion to correct judgment in cause No. 3607 is to be conclusively presumed to have disposed of the issues presented in the appellant's special answer to the motion; second, whether, independent of the answer or any judgment thereon, the appellant would be precluded from maintaining this suit because of failure to take any action by way of motion for new trial or appeal from the judgment in said cause No. 3607. An understanding of the respective rights of the parties as they existed at the time of the filing of the motion and the procedure by which such rights are to be enforced is, we think, essential to an answer to these questions.

The final judgment in cause No. 3607 was rendered, as distinguished from the entry thereof, on January 31, 1907. Coleman v. Zapp, 105 Tex. 491,151 S.W. 1041. Upon adjournment of that term "the jurisdiction or power of the court over it [the judgment] on its merits is unquestionably exhausted." Milam County v. Robertson, 47 Tex. 231. If an error in the ministerial entry of the judgment were made, this might be subsequently corrected by a proceeding in the same case on the initiative of the court or a motion of the parties, but "the power to correct the record existed in the court, not by reason of its continued jurisdiction over the subject-matter, but by virtue of its continuing power over its records." Hickey v. Behrens, 75 Tex. 488, 12 S.W. 631. The nature and effect of the motion in cause No. 3607 to correct the record of said judgment is clearly stated in the opinion in Coleman v. Zapp, 105 Tex. 491,151 S.W. 1041, thus:

"A proceeding of such character, whose only purpose is to have the judgment entry speak truly the judgment as rendered, neither asserts nor seeks the enforcement of any new right; it presents no issue between the parties except in respect to the accuracy of the record and otherwise involves the adjudication of nothing between them. It is powerless to reopen the controversy as closed and sealed by the judgment and makes no such attempt. The inquiry under it is not what judgment might or ought to have been rendered, but only what judgment was rendered; and such is the sole issue to be determined. If an amended or corrected entry be ordered, the status of the parties and their relative rights, as decreed and fixed by the judgment, remains untouched and unaltered, in no sense adjudicated anew, but only judicially evidenced as originally determined."

The proceeding is not an "action." It is a mere motion in the case to be summarily disposed of by the court without the intervention of a jury. Hester v. Baskin, 184 S.W. 727; Eddleman v. McGlathery, 74 Tex. 280,11 S.W. 1100. On the other hand, the appellants attacked the judgment as rendered as being wrong on the merits and sought to set it aside because it was claimed that the facts set up in the answer showed that this was true; and, while these facts are set up in the form of an answer, they could only be available as in support of affirmative relief, which is in fact prayed for, against the judgment rendered; and the answer, though not expressly so denominated, is to be really regarded as in the nature of a cross-action. The relief sought therein could only be secured by an independent "action," brought for the purpose of setting aside the former judgment in cause No. 3607, and in "such case the new suit has all the incidents of an original action, and upon every issue involved either party is entitled to a regular trial before a jury upon testimony offered in the manner usual upon the hearing of causes upon their merits." Eddleman v. McGlathery, 74 Tex. 280, 11 S.W. 1100; Coleman v. Zapp, supra; Rogers v. Dixon, 176 S.W. 865. See, also, Wallis v. Stuart,92 Tex. 568, 50 S.W. 567. We quote again from the opinion in Coleman v. Zapp, supra:

"These two cases [we interpolate the respective proceedings of the parties in this case] well illustrate the distinction which lies clearly defined between a suit to correct a judgment because of the mistake of the court in its rendition, whereby an improper judgment is rendered, but its entry is in accordance with the rendition, and a proceeding to correct or supply the minutes of the court so as to have them truly recite the judgment actually rendered. To correct in the trial court, after adjournment of the term, a judgment as rendered, an independent action is necessary, as its jurisdiction of the case is at an end. In the latter instance the court may, at a subsequent term, of its own motion or upon the application of parties, order the proper entry because the inherent power that it possesses as a court over its own records endures for the sake of their verity."

We do not mean to say that, if the appellees had answered the issues tendered in appellants' answer to the motion, and the court had actually heard and decided the issues thus made and rendered judgment thereon, we would not consider the matter as being finally disposed of. In such case, under our liberal system of practice, the proceeding and judgment thereon might properly be regarded as a proceeding in an independent action, though it was filed in and took the number and style of the original suit. But the filing of the pleading as a motion, or an answer to a motion or as a cross-action in the original case, would not destroy its nature, and this brings us back to the first question as to whether it is to be implied that this independent action is disposed of by the entry of an order on the motion in the case proper to correct the judgment. We think not. In support of the contrary view that line of authorities is relied upon which asserts that in the ordinary suit a cross-action is presumed to be disposed of by a final judgment in the case, "by necessary implication only, without expressly mentioning it." Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161; Hermann v. Allen, 103 Tex. 382, 128 S.W. 115. The decision in these cases is placed on the ground that by statute final judgment in the case must dispose of all the issues, and a general judgment entered therein is to be taken as a final judgment, disposing of all the issues by implication, if not expressly mentioned or reserved. We do not think these decisions applicable to this case. We have here in effect two cases, original cause No. 3607. Final judgment had already been rendered in this case, and the only jurisdiction that remained was to act on the motion to correct said judgment as entered. The answer to the motion or cross-action, in so far as it attacked the judgment on its merits, presented another independent action. These answers were filed on July 18 and 19, 1917, respectively. The appellees made no reply thereto. It may be that they would not have been required to do so, except after service of citation, and even then might possibly have successfully resisted an effort to have the summary disposition of the motion in cause No. 3607 complicated and delayed by the trial of this independent suit. Appellees' attorneys and the court gave no attention to this effort of appellants to bring this new case into the old one; for on July 19, 1917, the court, without referring to these issues at all, entered the order granting the motion to correct the original judgment as entered. The order made under these circumstances does not appear to us to have any analogy to the "final judgments in the case" being considered in the cases decided by the Supreme Court, above cited. The reason for the rule announced in those cases does not, in our opinion, apply here, and under the circumstances we are unwilling to hold that this cause of action was decided "by necessary implication."

As to the second phase of this question, appellee contends that cause No. 3607 was still pending up to the time of the entry of the order correcting the record of the former judgment, and that appellee could have filed a motion for new trial raising all the issues presented in this suit, and could have appealed from the judgment on the merits in said cause, and that, since such remedy by direct action in the cause in which the judgment was rendered was open, the court should not entertain a separate suit to set aside the judgment. If it be true that a motion for new trial as suggested could have been made, there might be some merit in this contention. The authorities referred to in our discussion of the first phase of this defense, if we have correctly understood them, would preclude the setting aside of the judgment rendered in 1907 on an ordinary motion for new trial (presented for summary action by the court, and not regarded as an independent suit) filed in July, 1911, on grounds that there was error in the judgment on the merits of the case; to say the least of it, grave doubt would exist as to whether such method of procedure was open to appellant. We assume that appellant could have appealed from the judgment in cause No. 3607 after the corrected entry thereof. Palmo v. Slayden Co., 100 Tex. 13, 92 S.W. 796. Such appeal (admitting that a statement of the facts as to the evidence upon which the court acted in rendering judgment in cause No. 3607 could have been obtained — the record here, without going into detail, shows that this would have been attended with considerable if not insurmountable difficulty) would have brought up for review only irregularities, if any, in connection with the appointment of the guardian ad litem, and rendition of judgment on his statement and pleading, and the real merits of the appellant's case as presented in this suit would not have appeared. The Supreme Court, in the case of Hamblin v. Knight, 81 Tex. 351, 16 S.W. 1082, 26 Am. St. Rep. 818, makes this statement as to when a party may proceed against a judgment in an independent action, though remedy by direct proceeding in the case is still open:

"Such relief * * * will not be administered when the party has an adequate remedy at law nor as a general rule when he has an opportunity to make a motion for a new trial at the term at which the judgment was rendered. * * * If relief against such a judgment is sought during the continuance of the term at which it is rendered, and there exists any circumstances making an application for new trial an insufficient or a less effective remedy than a separate suit would afford the party, upon alleging such facts he should be allowed to proceed by separate suit * * * instead of being confined to a motion for new trial."

We think it sufficiently appears that any remedy that appellant had left by motion for new trial or appeal in cause No. 3607 was not such "adequate remedy" as would preclude her from maintaining this suit. Sumner v. Crawford, 91 Tex. 129, 41 S.W. 995, second column. The court below did not deny appellant's right to proceed in this case for this reason, and we will not seize upon it as justifying what we consider the otherwise erroneous action of the court in denying appellant the right to go to the jury in the case.

For the reasons stated, the judgment will be reversed, and the cause remanded.