Willson v. Kuhn

Four or five months ago this court, after due consideration of appellees' motion for rehearing, and a careful re-examination of the numerous briefs and redundant record in the case, unanimously agreed that the motion for rehearing should be refused.

It was also understood by all the members of the court that the announcement of the judgment of the court on the motion would be withheld until the writer of the original opinion should determine whether an opinion was necessary or expedient in reply to the arguments and briefs of appellees in support of their motion for rehearing.

Since that time circumstances beyond the control of the writer, combined with other pressing official duties, have absorbed his time and attention and caused the delay in announcing the decision of the court upon the motion.

We adhere to our conclusion that the judgment of the trial court should be reversed and the cause remanded.

In support of our conclusion that the Texas Banking Investment Company was not a necessary party to appellants' suit to set aside the judgment of the court below in favor of appellees, because of the fact that such corporation had no interest in the subject-matter of the suit, we add the following: The suit is not one to reopen the cause in which the judgment sought to be set aside was rendered for new trial, but a suit to have that judgment set aside on the ground that it was void because appellants were not parties to the suit in which it was rendered. It seems to be the rule of decision in this state that in a suit to annul a judgment on the ground that, although it appears valid on its face, it is void as to those seeking its annulment because they were not parties to the suit in which the judgment was rendered, it is only necessary to make those who have apparent rights under the judgment parties to the suit for annulment. Garza v. Kenedy (Tex.Com.App.) 299 S.W. 231; Bonner v. Pearson (Tex.Civ.App.) 7 S.W.2d 930-932; De Garcia v. Ry. Company (Tex.Civ.App.) 77 S.W. 275; Payne v. Hook, 7 Wall. (74 U.S.) 425,19 L. Ed. 260-262.

These decisions are so consonant with reason and justice that we have no doubt of their legal soundness.

With their motion for rehearing appellees presented a motion for additional conclusions of fact. This motion requests this court to make twenty-four findings of fact in addition to the facts stated in our original opinion. Most, if not all, of these requested fact findings are fully sustained by the record, but we do not think they have any controlling effect upon the questions discussed and decided in our original opinion. We do not think the fact that at the time the deed from Higgins to the Texas Investment Company was executed that joint-stock association had by resolution of its members changed its name to Texas Banking Investment Company, is material on any of the questions presented by this appeal.

Willson, to whom the deed was delivered, was the president of the first company, and after its change of name continued as president. We think the execution and delivery of the deed to Willson placed the title in the Texas Banking Investment Company.

There was no direct evidence offered by appellants showing what was paid by Willson as consideration for this conveyance, other than the recitals of consideration contained in the deed.

While this lack of further evidence by the appellants of the consideration for the conveyance tended to weaken the force of the evidence set out in our main opinion as sufficient to sustain a finding against appellees' claim as to what was the real consideration, it does not destroy the appellants evidence upon this issue, nor authorize the trial court to take that issue from the jury.

The motion for rehearing, and also the request for additional conclusions of fact, are overruled.