De Proy v. Progakis

DUNKLIN, J. This suit has been brought to this court by writ of ■ error proceedings from the district court of Wichita county. The writ of error was sued out by Ogda De Proy and August De Proy, widow and son, respectively, of John De Proy, deceased. They were defendants in the trial court, and will hereinafter be designated as defendants. August D. Progakis was plaintiff in the trial court, and will hereinafter be referred to as plaintiff. By this proceeding the defendants seek a reversal of the judgment rendered against them in plaintiff’s favor for recovery of an undivided one-third interest in a certain lot situated in the city of Burkbur-nett, together with an undivided one-third interest in a building and the fixtures, furniture, and merchandise contained therein, and used in the conduct of a restaurant business, all situated on said lot. The case was tried before a jury, and the judgment was based on their findings of fact. The defendants filed no motion for a new trial and gave no notice of appeal from the judgment of the trial court. The plaintiff presents the contention that this court is without jurisdiction by reason of the fact that the defendants did not give notice of appeal. It is well settled by decisions of this state that notice of appeal is a jurisdictional requirement whenever a case is brought to a Court of Civil Appeals by an appeal, as contradistinguish-ed from a writ of error proceeding. Articles 2084 and 2085, V. S. Tex. Civ. Statutes; Telegraph Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945; Beaumont v. Newsome (Tex. Civ. App.) 139 S. W. 615; McMillen v. White House Lumber Co. (Tex. Civ. App.) 149 S. W. 734; Goldman v. Broyles (Tex. Civ. App.) 141 S. W. 283. But the giving of a notice of appeal in the trial court is not necessary to vest the appellate court with jurisdiction of a proceeding by writ of error. Such was the holding of the Court of Civil Appeals of the Seventh District in the case of McPhaul v. Byrd, 174 S. W. 644, in an opinion written by Chief Justice Huff, which we think sound, and which seems never to have been overruled. Article 2084 of the statutes specifically requires notice of appeal to be given in open court within two days after final judgment, or after motion for rehearing is 'overruled, as a requirement in order to per622 feet the appeal; but there is no statute specifically requiring such notice of appeal to be given in order to-perfect a writ of error. If the statute were otherwise, then no writ of error would lie to a judgment against a defendant who had been .cast in the suit without due service and without notice thereof until after the term of court had adjourned. Furthermore, in the case of Telegraph Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945, it is pointed out that the purpose of the requirement of notice of appeal, ds provided in article 2084, is to apprise the opposing party that an appeal may be expected', and it is intimated in that opinion thát probably the giving of notice of appeal would, not be held to be a jurisdictional requirement, if the opposing party had notice of such appeal by the service of a statutory citation. Plaintiff also suggests that the proceeding should be, dismissed for lack of a sufficient writ of error bond, in that the one filed does not contain a condition that defendants in error will answer for the rents and revenues of the property recovered by plaintiff, in the event judgment of this court and of the Supreme Court should be adverse to them. That point is not well taken, for the reason that it comes too late, being urged for the first time on the submission of the cause upon its merits. Even though the appeal bond is not strictly in compliance with the statutes, it is sufficient to give this court jurisdiction, and the objection to it now made was waived by the failure to present it by a motion within 30 days after the transcript was filed in this court, as required by rule 8 of the Rules of the Courts of Civil Appeals, 142 S. W. xi. In the absence of any motion for a new trial in the lower court, the only questions which can be raised are questions of fundamental error. Article 3965, Rev. Statutes, the same being our statute of frauds, was made the basis of a special exception to plaintiff’s petition by defendants presenting the contention that the petition showed on its face that plaintiff was seeking to enforce a parol • contract for the sale of real estate, which was in violation of that statute. ' The defendants also presented a general demurrer to the petition. Assignments of error have been presented to the alleged action of the court in overruling the general demurrer and the special exception to plaintiff’s petition. The record does not show such rulings by the trial court. Not only is there an absence of a showing of any such rulings, but the record also fails to show that either the general demurrer or the special exception was ever called., to the court’s attention. There is no assignment of 'error in the record presenting the specific contention that the plaintiff’s petition was insufficient to serve as a basis for the judgment rendered in plaintiff’s favor, but the argument is made in defendant’s brief that the petition is insufficient to support the judgment: First, because it shows on its face that the contract which plaintiff alleged he made with John De Proy, deceased, who was the husband of Ogda De Proy and father of August De Proy, defendants, and upon which a recovery was sought for an interest in real estate, was in parol, and therefore void because in violation of the statute of frauds; second, because the petition shows that the suit was against the heirs of John De Proy, deceased, and the plaintiff’s petition contains no allegation that "there had been no administration on the estate of John De Proy, and there was no necessity therefor. Apart from the question whether or not the assignments of error referred to are sufficient to serve as a proper basis for those contentions, in view of rules 23, 24, and 25 for the Courts of Civil Appeals, it is well settled that, in order for one to avail himself of the benefits of the statute of frauds, he must invoke it by proper pleadings, or must object to testimony, when offered to prove a contract, which is in violation of the statute of frauds. In other words, a defense based on the statute of frauds may be waived, and if waived, a judgment, based upon a contract which is prohibited by the statute of frauds is not fundamentally erroneous by reason of that fact. The defense of the statute of frauds may be urged in the defendant’s pleadings either by special exception or by special plea or by objection to testimony. Since the special exception was not called to the trial court’s attention, it must be considered as having been waived, and therefore that exception is of no avail to defendants on this appeal. Hence appellants are in no position to complain of the ’judgment of the court on the alleged ground that the petition showed on its face that the contract, made the basis of plaintiff’s suit for an interest in the real estate was in parol, and therefore in violation of the statute of frauds. And in-this connection it is to be noted further that no assignment is presented:'showing that any objection was made by the defendants to the evidence introduced to establish the contract sued.on by the plaintiff, on the ground that it was in violation of the statute of frauds. Nor do we believe that it appears from the petition that the contract was in parol. Furthermore, the alleged contract was for the joint acquisition of the property by plaintiff and John De Proy, in part, with money and services furnished by plaintiff for that purpose, and under those circumstances the statute of frauds was not applicable.» Gardner v. Randell, 70 Tex. 453, 7 S. W. 781; Phoenix Land Co. v. Exall (Tex. Civ. App.) 159 S. W. 474; Hammons v. Clwer, 59 Tex. Civ. App. 610, 127 S. W. 889. [623] In the argument presented under the assignments of error referred to above, appellants insist that the plaintiff’s petition was subject to a- general demurrer, and therefore insufficient to support the judgment in plaintiff’s favor because of the absence of any allegation that there had been no administration on the estate of John De iProy, deceased, and that there was no necessity therefor. The petition did contain the allegation that John De Proy had died, leaving the defendants as his only heirs, and that no administrator had been appointed for his estate, but did not contain any allegation to the effect that there was no necessity for an administration. Furthermore, the petition alleged that John De Proy died March 18, 19-22, and this suit was instituted November 4, 1922. Appellants iave cited the following decisions to support their contention: Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015; Modern Woodmen of America v. Yanowsky (Tex. Civ. App.) 187 S. W. 728; Freeman v. Klaerner (Tex. Civ. App.) 190 S. W. 548; Engelking v. Mertens (Tex. Civ. App.) 202 S. W. 777. The leading case cited, Laas v. Seidel, was a suit to collect $300 of a $500 promis-' sory note, payable to a decedent, that portion of the note having been bequeathed to the plaintiff’s wife by the last will of the decedent. A general demurrer to the petition was presented and overruled, and the Supreme Court held that, as against that demurrer, plaintiff’s petition was insufficient to support a recovery by reason of the absence of any allegation that there had been no administration upon the estate and no necessity therefor. In the opinion in that case the decision in Richardson v. Vaughan, 86 Tex. 93, 23 S. W. 640, is cited as decisive of the question, and in the latter case cer-⅜ tain exceptions to that rule are pointed out, such as announced in Walker v. Abercrombie, 61 Tex. 69, and to which might be added Webster v. Willis, 56 Tex. 468, and McCampbell v. Henderson, 50 Tex. 601, but none of these exceptions obtain in the present suit. Richardson v. Vaughan was also an action by heirs of John P. Richardson, deceased, to recover a debt due his estate. All the other cases noted above likewise involved efforts by heirs of decedents to collect claims due the estates, except the case of Midland Ry. Co. v. Midland Mercantile Co. (Tex. Civ. App.) 216 S. W. 628, in which no estate of a deceased person was interested, and the decision in Daas v. Seidel was cited solely on the general proposition that, “if a fact necessary to be proved to sustain a recovery on the part of the plaintiff be neither alleged in the petition, nor fairly inferable from facts alleged,” a demurrer to the petition must be sustained. That rule of decisions follows logically from our probate statutes providing for ffhe appointment of executors or administrators of estates of decedents, when necessary, and vesting in them title to all assets of the estate as the legal representatives of the creditors and all other persons interested in the estate, for the purpose of settling the debts owing by the estate and collecting those due it. Article 3435 of those statutes requires “every claim for money against a testator or intestate” to be presented to the executor or administrator within 12 months after the grant of letters testamentary or of administration. Those decisions and the statute just cited are applicable .to the second count in plaintiff’s petition in the present suit, in which count plaintiff sought, in the alternative, to recover fo.r a debt incurred by the decedent to plaintiff, in the event he could not recover on the first count for an interest in realty. However, as he did not recover on this second count, the same may be treated as surplusage on this appeal. But those decisions have no proper application to the first eount in plaintiff’s petition, which was not a suit against the heirs of John De Proy, deceased, to collect a debt incurred by him, but was a suit against those heirs for the recovery of an interest in real estate, which, according to allegations, the deceased did not own at the date of his death, and which therefore was no part of his estate. Article 1837 of our Revised Civil Statutes is as follows: “In every suit against the estate of a decedent involving the title to real estate, the executor or administrator, if any, and the heirs shall be made parties defendant.” In the first count of plaintiff's petition, the heirs of John De Proy, deceased, were made parties defendant, and it was alleged that no administrator had been appointed. The statute just quoted did not require an allegation of no necessity for administration if no legal representative of the estate has been appointed. According to the terms of the statute, the heirs are the only necessary parties defendant if there be no legal representative. The purpose of our probate laws is mainly for the protection of creditors and the widow, heirs, and devisees of the decedent. So far as this record shows, the creditors of the 'decedent, if there be such, are the only persons, other than the heirs, who could possibly be interested in contesting plaintiff’s suit to recover the realty, and they could act only through an administrator, if one were appointed. If defendants, the heirs of the decedent, had seen fit to do so, perhaps they could have presented a plea for the abatement of the suit until an administrator could be appointed, upon a showing that there was a necessity therefor, in order to make a necessary party. But neither in their pleadings to the merits nor by plea in abatement did they make any allegations that there were creditors of the [624] estate; and the general demurrer to the petition was insufficient to present the contention that there was an absence of a necessary party defendant, especially as no ruling was invoked or made on that demurrer. Furthermore, the appointment of an administrator, if necessity therefor exists, was not required in order to protect the rights of the defendants to the land sued for. If an administrator be hereafter appointed, he, as representative of creditors, wiE not be prejudiced by the judgment rendered in plaintiff’s behalf, because not a party to this suit. It does not appear from the record that there are creditors of the estate or that the necessity for an administration will ever arise; but, if it does, that fact will not prevent the judgment in plaintiff's favor from being valid and binding as between the parties to this suit, since no partition of the property was sought. Solomon v. Skinner, 82 Tex. 345, 18 S. W. 698; Heirs of Tevis v. Armstrong, 71 Tex. 59, 9 S. W. 134. It would have been otherwise if a partition had been prayed for. Article 6097, Rev. Statutes; Holloway v. McIlhenny Co., 77 Tex. 657, 14 S. W. 240; Boone v. Knox, 80 Tex. 642, 16 S. W. 448, 26 Am. St. Rep. 767. Moreover, defendants recovered a judgment over against plaintiff for $190.00 plus $333-33, and they are complaining that the same was less than 'it should have been. Plaintiff has not appealed from that recovery. It would seem that, if the court had jurisdiction to grant defendants that relief for debts owing by plaintiff to the decedent, plaintiff also was entitled to be heard on the first count in his petition without alleging that there was no necessity for an administration. The jury found that the decedent loaned plaintiff $200 at one time for his personal use, and that plaintiff took from the cash drawer of the restaurant 50 cents per day for a period of time amounting to 580 days, which would amount to $290. The items for which defendants were awarded judgment were $190 and $333.33, with no mention as to what those items covered, and there was no finding by the jury of any item of $333.33. Under such circumstances, we overrule the contention of defendants that the item in the judgment of $190 should have been $290, since the difference between, those araounts may have been included in the other item for which judgment was rendered. Complaint is made of the refusal of the trial court to instruct a verdict for the defendants in compliance with defendants’ motion; made after plaintiff had first introduced evidence and rested his case. The ground of the motion was the contention that plaintiff’s evidence up to that time was insufficient to warrant a recovery of the realty sued for. We are not prepared to say that that ruling was erroneous; but, however that may be, after the motion was overruled plaintiff introduced other testimony tending to support such a recovery, and no assignment is presented challenging the sufficiency of his evidence thus supplemented to support the recovery awarded in his favor. This assignment is overruled, irrespective of the question as to whether or not that contention can be urged as fundamental error, in the absence of a motion for new trial in the court below. For the reasons noted, the judgment of the trial court is affirmed.