Ferguson v. Ferguson , 69 S.W.2d 592 ( 1934 )

On Rehearing. The motion for rehearing challenges the correctness of the court's holding on practically all questions decided in the original opinion, and each has been given a careful reconsideration. However, we are of the opinion that only one question decided should have a fuller discussion. That question is presented by the contention that the petition in error was filed by A. M. Ferguson in his capacity as temporary administrator, and that, therefore, no bond of any character was required to supersede the judgment of the court below in so far as same affected the estate.

There are pending in this court a number of motions between the same parties and involving the same subject-matter. It is impossible to consider these motions separately without taking cognizance of the contents of each. The record, as presented in these several motions, discloses this history of the litigation: On September 17, 1932, A. M. Ferguson and Joe Lee Ferguson executed a contract called "Arbitration and Partition Agreement." This agreement recites the facts relative to the settlement of the estate of Kate F. Morton and of the litigation between the parties. Joe Lee Ferguson and A. M. Ferguson are the residuary legatees under the will of Mrs. Morton. It would be of no value to set out all the terms of the agreement to arbitrate, but, among other things, it provides that the property should be partitioned between them as individuals, and that: "It is further understood between the parties hereto that, as to the real estate so set aside by the partition, that each party may go into possession of his respective share subject to the lien fixed by any valid bequest in said will and any debt due by the estate." The agreement further provided that the award of the board of arbitration would be final and no appeal would be taken therefrom. The relief sought in this court in the case at bar is an injunction to prevent respondent Joe Lee Ferguson from taking possession of the real estate awarded to him by the board of arbitration, which award was adopted by the judgment of the district court. The title to this real estate is not affected and the rights of the estate are not lost by the taking of possession of the real estate by Joe Lee Ferguson. The only interest the estate could have, as such, in the matter would be to preserve sufficient property thereof to satisfy the indebtedness of the estate and the legacies provided by the will. These debts and legacies could not be defeated by the act of Joe Lee Ferguson in taking possession of the real estate awarded to him. The estate, as such, cannot be concerned with how it is distributed as between the two residuary legatees.

Further, in order to show his right to the extraordinary writ of injunction in this court, it devolved upon relator to allege facts showing that his substantial rights would be violated but for the issuance of such injunction. The record brought to this court discloses that the judgment from which the writ of error is being prosecuted was one merely adopting the award of the board of arbitration. No facts are alleged showing any right of appeal by A. M. Ferguson, as administrator or individually, from such judgment. R.S. 1925, art. 233. The record is further insufficient to show any right in A. M. Ferguson, as administrator, or otherwise, to institute the suit in the district court, in that there is no showing that the petition alleged the existence of fraud or other exceptional facts authorizing the court to set aside the award. This court's authority to issue the writ prayed for is limited to one purpose, and that is the protection of its own jurisdiction pending determination of the main case. There is no sufficient showing that we have jurisdiction of the main case, or that, if we have such jurisdiction, our judgment would become moot because of the fact that Joe Lee Ferguson has possession of this real estate at the time our judgment is rendered. By the terms of the agreement to arbitrate, the property, while in the possession of Joe Lee Ferguson, would still remain subject to any valid order of the court. Such right of possession does not by the terms of the agreement carry with it the absolute title free of claims against the estate. It follows that the estate will not suffer by the possession of respondent.

The motion for rehearing will be over-ruled.