Cunningham v. Parkdale Bank

ROBERTSON, Justice. This is an appeal from an order entered by the county court sitting in probate in a proceeding entitled “Estate of Nancy Nixon Cunningham, Deceased.” At some point, someone has captioned this matter “Maston Nixon Cunningham, Appellant v. Parkdale Bank, Administrator with Will Annexed of the Estate of Nancy Cunningham, Deceased, Appellee.” Parkdale Bank is not now nor has it ever been a party to this action. Appellant assigns fifteen points of error in his original brief and two additional points of error in his supplemental brief. However, appellant appears to accurately present the issues when, in his reply brief, he sets them out in the following manner: 1. Whether the probate court had jurisdiction to disapprove the final account; 2. If it did have such jurisdiction, whether it had jurisdiction to render a personal judgment against appellant; and 3. If it did have subject-matter jurisdiction to render such personal judgment, whether appellant, in the final account, judicially admitted that he had misappropriated funds. We affirm. A brief historical background is helpful. Nancy Nixon Cunningham died testate on — 486 — February 14, 1980, leaving three children: Maston Nixon Cunningham, Nancy Cunningham, and Susan Ellen Cunningham. In her will executed in 1957 she named her husband as executor and her father as substitute, both of whom predeceased her. On March 21, 1980, the court granted the application of the three children that Maston Nixon Cunningham be appointed independent administrator to serve without bond. He qualified and letters testamentary were issued on the same day. On March 26,1981, Maston Nixon Cunningham filed “Application by Independent Executor to Resign” requesting permission to resign immediately, stating that within 30 days he would “promptly file, as the first amendment to this Application, a full and complete exhibit in final account, duly verified, showing the true condition of the Estate entrusted to his care.” He further requested the court defer discharging or releasing him “until a final order or judgment shall have been rendered on his account.” In his prayer he requested that Parkdale Bank be immediately appointed as his successor, to serve as Administrator With Will Annexed, that this Court issue its orders requiring all estate assets in the possession of said Administrator to be immediately surrendered to said Administrator With Will Annexed and that upon the filing of the first amendment to this Application, supported by exhibit in final account, this Court shall set a date for hearing upon the matter, and shall order the clerk to issue Citation by posting notice to all interested persons, showing that proper application has been filed, and the time and place set for hearing, at which time said persons may appear and contest the exhibit in final account, together with such other orders as the Court may deem necessary or proper. On the same day the court granted the application, accepted his resignation, ordered him to file a “Full and Complete Exhibit in Final Account” with notice to be given by posting, and appointed Parkdale Bank as Administrator with Will Annexed. On May 1, 1981, Maston Nixon Cunningham filed “Exhibit and Final Account of Independent Administrator after his Resignation and Application for Discharge” which was executed under oath. In this exhibit he swore that the debts of the estate totaled approximately $160,000; there was “no money on deposit for the credit of the Estate;” and that he had “advanced” $26,938.79 to himself and $10,668.78 to his sister, Nancy, totaling $37,607.57. He carried these advances as estate “claims” against him and his sister. In this final account he requested the court issue citation by posting, that “the court ... audit, settle, and approve this account,” and discharge him pursuant to the provisions of Tex.Prob.Code Ann. § 221 (Vernon 1980). In accordance with his request, citation was issued and ordered posted, setting the date of the hearing for May 25, 1981. On June 4, 1981, the court entered its “Order Disapproving Exhibit and Final Account, Delaying Discharge of Independent Administrator and Judgment for Amounts Owing to the Estate.” In said order it is recited that the court proceeded to examine such Exhibit and Final Account, and having heard evidence for and against the same, and such Exhibit and Account having been examined and disapproved, and having considered all other things necessary for a determination of these matters, and the Court being satisfied that the matters entrusted to the Applicant have not been handled and accounted for in accordance with law, and that the Applicant has improperly disbursed, from said Estate, cash in the amount of Thirty-Seven Thousand Six Hundred Seven and 57/100 Dollars ($37,-607.57), which funds have not been accounted for or reimbursed by said Applicant, and which disbursements, were judicially admitted and stipulated by Applicant in the Exhibit and Final Account filed under oath in this cause by the Applicant. The court then disapproved the exhibit and final account; ordered any portion of the estate remaining in possession of applicant (appellant) be delivered to Parkdale Bank; and ordered “at such time as it has been — 487 — satisfactorily shown to the court that such delivery has been made and that Applicant has complied with all other orders of this Court with relation to such Estate, Applicant shall be discharged, but Applicant shall not be discharged until he has complied with all orders of this Court.” (Emphasis added). The order then concludes: The Court further finds that there is a deficiency in the funds now available to the Estate in the net amount of $37,-607.57, which funds were improperly disbursed by Applicant from said Estate; it is therefore ORDERED, ADJUDGED and DECREED that Parkdale Bank, Administrator With Will Annexed, do have and recover judgment of and from Maston Nixon Cunningham, individually, the sum of $37,607.57, plus interest and costs for all of which let execution issue if not duly paid. It is finally ORDERED, ADJUDGED and DECREED that nothing herein shall limit the rights of Parkdale Bank, Administrator With Will Annexed, from exercising its rights as representative of the Estate to obtain a separate judgment against Maston Nixon Cunningham, Individually, for damages and costs as authorized by Section 245 of the Texas Probate Code. Subsequently, Maston Nixon Cunningham filed a motion and an amended motion for new trial, and from the denial thereof, he gave notice of appeal. In his first and second points of error appellant contends the court erred because it did not have jurisdiction to disapprove the final account. He argues that since he was an independent administrator the probate court, in the absence of express authority in the probate code to the contrary, does not have the authority to interfere with the settlement of an estate. We need not address the merits of appellant’s contention for the reason that he invoked the jurisdiction of the trial court when he filed his application to resign and the final account, praying for his discharge “pursuant to the provisions of § 221 of the Texas Probate Code.” Appellant will not be heard to urge a position on appeal inconsistent with that he urged in the trial court. Boatner v. Providence-Washington Ins. Co., 241 S.W. 136, 140 (Tex.Comm’n App.1922, judgmt adopted). His first two points are overruled. In points of error three through ten appellant argues the court committed error in rendering judgment against him personally because (1) he “was not personally served with citation, did not waive service of process and did not enter his appearance in the case;” (2) there were no pleadings sufficient to support the judgment; and (3) there was no evidence to support the judgment. Appellant’s argument and authorities in support of these points of error tend to complicate the simple issue which he overlooks. As was pointed out above, appellant, himself, invoked the jurisdiction of the court by filing the pleading upon which the court took action. Appellant, himself, asked that notice by posting be given. He cannot now be heard to complain that he was not personally served with process. The answer to his second argument that there are no pleadings is just as simple! He filed the motion to resign and the inventory asking the court to “audit, settle and approve this account” and discharge him. This constituted sufficient pleadings. Kaphan v. Fidelity and Deposit Company of Maryland, 564 S.W.2d 459 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.). Finally, his argument that there is no evidence to support the judgment is equally without merit. As pointed out above, appellant personally executed a sworn final accounting in which he admitted the wrongful conversion of $37,607.57. This was filed in support of his application to resign and with the prayer that the court “audit, settle and approve this account.” We hold this to be a judicial admission and sufficient for the court to enter judgment without the necessity of other evidence to support it. Humble Oil & Refining Co., et al. v. Webb et al, 177 S.W.2d 218 (Tex.Civ.App.—Texarkana 1944, writ ref’d w.o.m.). Section — 488 — 221 of the Probate Code plainly places the duty upon the probate court to enter and compel compliance “with all lawful orders of the court with relation to his (the personal representative’s) trust.” As can be seen from the order entered in this case, the probate judge entered a personal judgment against Maston Nixon Cunningham for the misapplied funds “plus interest and costs for all of which let execution issue if not duly paid.” In his points of error appellant does not contend the court lacked the general jurisdiction or power to enter a personal judgment against him, but only that the court did not have that jurisdiction because there was no service, pleadings, or evidence to support the personal judgment rendered against him. However, it is appropriate to point out that long ago, the United States Supreme Court spoke of a court’s jurisdiction to enter a judgment in Northwestern Fuel v. Brock, 139 U.S. 216,11 S.Ct. 523, 35 L.Ed. 151 (1891), when it stated: Jurisdiction to correct what had been wrongfully done must remain with the court so long as the parties and the case are properly before it, either in the first instance or when remanded to it by an appellate tribunal. This principle authorized the trial court to render the judgment against appellant. In Currie v. Drake, 550 S.W.2d 736 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.) an order of the probate court requiring the guardian of an estate, pending in that court, to restore to the estate money improperly diverted from the estate was approved. In Kaphan v. Fidelity and Deposit Company of Maryland, a similar order was held not void. Appellant’s points of error three through ten are overruled. In each of points of error eleven through fifteen appellant contends the trial court “erred in finding or concluding, as the case may be” certain facts. While these points of error fail to bring the error allegedly complained of before us, even if we were to sustain any of them, they would not form the basis for any relief sought by appellant. Accordingly, they are overruled. In points of error sixteen and seventeen appellant contends the trial court erred in holding appellant “judicially admitted” the misapplication of estate funds. We have already addressed this contention, above, and therefore overrule these points of error. The order of the probate court is affirmed.