Lynn v. Schirber

SMITH, J. Motion to dismiss appeal on the ground that appellant has waived his right to appeal by pursuing a remedy for relief inconsistent with his right to relief in the action or upon appeal. Plaintiff claimed title as administrator to all the property left by John F. Nicholson, who died on the 13th day of August, 1919, and alleged that the defendant had wrongfully converted the same. Defendant, by his answer and at the trial, claimed title to the property, alleging a transfer and conveyance thereof to himself by deceased, John F. Nicholson, on or about August 11, 1919, in consideration of a written contract or agreement on the part of defendant that he would provide proper care and necessities of life, and all comforts reasonably possible, during the remainder of the life of said Nicholson, and, in further consideration, that said defendant should pay all just debts owing by said Nicholson, and after the death of said Nicholson should provide proper burial, and have a suitable monument erected over his grave, and, in further consideration, that said defendant should, after the death of said Nicholson, pay the sum of $1,000 to Mrs. Herman Rische, and turn over to her all the personal effects, furniture, and utensils in the house of said Nicholson, together with a conveyance of lots constituting his homestead, and, in further consideration, that defendant, after the death of said Nicholson, should pay to one Frank Warschawsky the sum of $1,000. Defendant alleged and shows that he has fully complied with all the terms and conditions of said contract, and has made and completed all the transfers and payments therein provided for and required. For the purposes of this motion these facts must be conceded. Plaintiff Lynn was appointed administrator of the deceased’s estate upon the application of one Albert •Nicholson, brother of the deceased. At the trial, plaintiff sought to avoid the conveyance and transfer of decedent’s property to defendant, upon the ground, and alleging that, decedent, at the time of signing- said contract and making said transfers and conveyances to defendant, was of weak and enfeebled intellect, to- such an extent that he was unable to understand the nature of the contract which he signed, and the transfers and conveyances made, and that, by reason thereof, his said acts were wholly void and ineffective, and did not operate to transfer title to said defendant. The cause was submitted to [267] a jury, which returned a verdict for plaintiff, upon which judgment was entered. Thereafter, defendant duly perfected this appeal from the judgment, and from an order overruling' his motion for a new trial. After the entry of judgment in the trial court, the time for creditors to present claims against the estate being about to expire, the defendant, fearing that, should the judgment be affirmed on appeal, and the time for creditors to present claims expire, there would be no way to protect himself for services rendered to deceased, and for the money paid by him for bills of deceased, for expenses of last illness and burial, and sums paid for tombstone, and to Mrs. Rische and Frank Warschawsky, filed in the county court a claim against the estate for the amounts thereof, which claim is pending, and wholly undetermined. Respondent now insists that the filing of this claim amounts to the election of a remedy inconsistent with the rights claimed by defendant at the trial and upon this appeal, and that defendant should be precluded from further reliance upon his claim' to decedent’s property, and that the appeal should be dismissed and denied. [i ]■ Defendant had two conditions to meet, but not two concurrent remedies. The very existence of the possible right to file his claim and recover from the estate for services and money expended in behalf of decedent depended wholly upon the question whether or not he had, in fact, acquired the title to decedent’s property. His claim to the property, and his claim against decedent’s estate, are not concurrent; the latter claim is dependent. His right to decendent’s property depended upon an adjudication of disputed facts, and not upon a choice, of remedies. His right to make a claim against the estate was dependent upon the same facts. The two claim's are inconsistent only in the sense that they cannot coexist. But appellant was at all times entitled to an orderly and legal adjudication of the disputed facts, and his claim upon appeal to a review of the proceedings at the trial was not a waiver of any right or contingent remedy against the estate dependant upon such adjudication. He cannot be. held to know, as a matter of law, whether he is the legal owner of decedent’s property until the disputed facts are finally adjudicated, and he certainly cannot, because of filing his contingent claim, be held to have voluntarily waived his right [268] to such adjudication; neither can he be held to know, as a matter of law, that he has a remedy against the estate until after such •adjudication. Then how can it be said that he .has abandoned either remedy by merely doing an act essential to the preservation of his contingent rights. We are of the view that the filing of the claim against the estáte was not, in a legal sense, voluntary, but was compulsory, in that in no other way could he preserve his contingent remedy against the estate until a final adjudication of the facts upon which it depended. [2] It is said that the doctrine of election of remedies has no application except where there are two or more methods of enforcing the claim. Gibson v. Oppenheimer (Tex. Civ. App.) 154 S. W. 694. We are of the view that the doctrine of election has no application in this case, either directly, or by analogy, and that appellant’s motion should be denied. It will be so ordered.