Sparks v. Summers

HODGES, J. On October 28, 1924,. Mrs. S. M. Summers, as the community administra-trix of the estate of herself and her deceased husband, filed this suit in the district court against Isham Sparks and J. H. Sparks. The purpose of the suit was to recover the amount of two promissory notes executed by Isham Sparks and to forclose a vendor’s lien on two tracts of land. It is alleged that in January, 1892, Isham Sparks purchased a tract of 29, acres of land from M. C. Waters, in part payment of which he gave four vendor’s lien notes aggregating $385; that in the course of time the plaintiff, as community administra-trix, acquired those notes; that on March 17, 1920, it was agreed-between her and Ish-am Sparks that the balance due on that debt amounted to $500. A contract was then entered into by which the notes were renewed and the time of payment extended to January 1, 1921. The petition also declared oh a note for $1,000, executed and delivered to her by Sparks in part payment of another tract of land. J. H. Sparks was made a party defendant, upon the ground that he was asserting some kind of interest in the land. The petition stated that Isham Sparks resided in Harris county, Tex., and J. H. Sparks resided in Kaufman county, Tex. Citation was issued to the counties above named, but the writs were not signed by the clerk, and did not bear the seal of the court. The writ issued to Kaufman county was served upon J. H. 'Sparks, but no return was made on the one issued to Harris county. On November 6, 1924, one of the attorneys for Mrs. Summers filed an affidavit stating that the plaintiff was mistaken in alleging the residences of the defendants, and that their residences were unknown. The parties to this appeal in their briefs apparently agree that citation by publication was made, hut that is not definitely disclosed by the record. A. B. Chandler, an attorney, was appointed to represent the defendants. On January 25, 1925, the next term of the district court, an answer was filed by Chandler, as attorney by appointment, for both defendants. In this answer he first moved that the citation by publication be quashed because the affidavit was false and defective.^ He also pleaded the nonjoinder of necessary parties, and that the action was barred by limitation. 'The case was called for a trial "before the court without a jury on June 25, 1925. It appears from the briefs, and inferentially from the record, that, while the evidence was heard on that day, the judgment was withheld, and not rendered and entered till September 5 thereafter. The judgment then entered gave- the plaintiff the relief prayed for. On July 22, 1925, J. H. Sparks filed a motion in which he alleged the failure to serve citation upon Isham Sparks, who resided in Harris county, and that the latter was then and had been for some time previous of unsound mind. He further alleged that the debts sued for were barred by limitation, and that the renewal pleaded by the plaintiff was invalid and ineffectual to revive and extend the debt or perpetuate the lien on the land. He concluded with a prayer asking “that the court do not render judgment herein ; but, if the court does do so, then he adopts this plea as a motion for a new trial.” That motion was signed and sworn to by J. H. Sparks. A reply to it was later filed by counsel for the plaintiff, which need not here be noticed. On September 5, 1925, the court entered an order overruling the' motion for a new trial, reciting that: “After hearing said motion, and without further evidence being héard (the court) is of the opinion that the motion should be overruled. It is therefore ordered and adjudged that the same be and it is in all things overruled. To which action of the court the defendants objected and excepted, and the defendants, by and through their said attorney, Alton B., Chandler, as aforesaid, then and there in open court gave notice of appeal,” etc. At the request of Chandler, made later, the trial judge filed findings of fact and conclusions of law which are, in substance, as follows: (1) That the notes described in the plaintiff’s petition were executed and renewed as alleged, that the indebtedness was secured by liens upon the land described, and that the plaintiff was entitled to recover the amount of the debt, together with interest and attorney’s fees. (2) That the original petition was filed on the 28th of October, 1924, citation was issued returnable on the 8th day of December, 1924, by the sheriff, of Kaufman county. That thereafter on the 11th day of November, 1924, both defendants, through A. B. Chandler, an attorney, filed' & motion to quash the citations theretofore issued. (3) The court concluded: That, by reason of their motion to quash the citations-at a former term of the court and their admission in the motion that they had both been personally cited, they were then in court and subject to its jurisdiction. (4> That the 29-acre tract described in plaintiff’s petition was incumbered by a vendor’s lien to secure the payment of plaintiff’s debt, for which judgment was awarded; that Ish-am Sparks had not acquired title by limitation to the other land described in the plaintiff’s petition; that Isham Sparks was not insane on the 17th day of March, 1920, nor at any time thereafter; and that defendant J. H. Sparks had no interest in the subject-matter of the litigation. The" court further concluded that, by the agreement entered into on the 17th day of *716 March, 1920, 'between Isham Sparks and the plaintiff, the original debt for $385 and the vendor’s lien to secure it were revived, and the time of payment extended to January 1, 1921. He further concluded that the matters of fact set up in the defendants’ motion for a new trial were not established by any evidence. On November 21, 1925, J. H. Sparks and others, representing themselves as heirs of Isham Sparks and his deceased wife, filed a petition for a writ of error. They alleged that Isham Sparks died in August, 1925, and his wife died in 1922. They also alleged that, since the judgment was rendered, the plaintiff, Mrs. Summers, had died, and asked that citation be issued and served upon her heirs, whose names and residences are stated. The brief filed by the plaintiffs in error contains a number of propositions, but no assignments of error. We therefore do not feel called .upon to go further than to inquire into the sufficiency of the original pleadings to support the judgment rendered, and the power of the trial court to render any judgment against Isham Sparks. The court having found that A. B. Chandler, whom he had previously appointed to represent the defendants, afterwards became ah attorney selected by them, and as such filed a motion to quash the service by publication, he had a right to conclude that the court had acquired jurisdiction of the persons of the defendants. By an appearance through an attorney of their own selection, they put themselves within the jurisdiction of the court and enabled it to render such judgment ás the pleadings and the evidence warranted. It is clear, from an inspection of the pleadings of the plaintiff below, that, if the facts alleged by her were true — and according to the court’s findings they were — she was entitled to judgment for the amount of her debts and the foreclosure of the liens on all the land involved in this controversy. In the course of their argument, plaintiffs in error contend that the renewal contract executed by Isham Sparks was not sufficient to revive and extend the original vendor’s lien on the 29 acres of land purchased by him from Waters. In the transcript is an agreed statement of facts which contains this recital: “That, after the death of J. W. Summers, Mrs. S. M. Summers duly qualified as community administratrix of the estate of J. W. Summers, deceased, being his surviving widow, the said notes being community property of the said J. W. Summers and Mrs. S. M. Summers; that thereafter on the 17th day of March, 1920, by a duly acknowledged instrument in writing, Isham Sparks executed and acknowledged and delivered to Mrs. S. M. Summers, community administratrix, hiS certain extension agreement wherein he promised to pay to Mrs. S. M. Summers, community administratrix, $500 on the 1st day of January, 1921, being the amount due ■on- said four original notes.” In his findings of fact, the trial court states: “That thereafter, on or about the 17th day of March, 1920, by a duly acknowledged instrument in writing, defendant Isham Sparks, in consideration of said debt, executed and acknowledged and delivered to plaintiff his certain extension agreement wherein and whereby he promised to pay to plaintiff $500, the amount due on said notes, on the lsf day of January; 1921.” In- his conclusion he adds; “And the defendant Isham Sparks, on the 17th day of March, 1920, in manner and form to revive said debt and said vendor’s lien, executed and acknowledged his extension agreement, wherein and whereby the existence of said debt to the extent of $yi)0 and the existence of a vendor’s lien on the said 29-acre tract to- secure same.” In the absence of evidence to the contrary, we must assume that the contract of renewal was sufficient to warrant the legal conclusion of the court that both the lien and the debt were revived and renewed. However, we do not mean to hold that a renewal of the debt alone would not be sufficient to revive the lien by which the debt was secured, when there is nothing in the renewal contract to indicate a different intent. See Ater v. Knight (Tex. Civ. App.) 218 S. W. 618. The transcript contains what counsel for plaintiffs in error call a copy of the original renewal agreement executed by Sparks, but that appears as an isolated document, not as a part of the statement of facts, or as an exhibit to any pleading. It cannot, therefore, be considered as a part of tbe record in passing upon tbe sufficiency óf tbe evidence to support the legal conclusions reached by the court. So far as the record shows, there appears no error which justifies a reversal of the judgment rendered in this case. No evidence was offered tending to show that Isham Sparks did not have the right to extend the debt and lien against the land, nor was there any evidence offered that he was insane, or that he was not cited, or was not represented by an attorney of his own selection. In that state of the record, and in the absence of any specific assignments of error, we conclude that the; judgment of the trial court should be affirmed. The CHIEF JUSTICE, being disqualified, did not sit in this ease.