# Dunn v. Epperson > Court of Appeals of Texas · February 18, 1915 · 175 S.W. 837 URL: https://www.frixlaw.com/law-library/cases/9828051 ## Case - **Full name:** DUNN Et Al. v. EPPERSON Et Al. - **Court:** Court of Appeals of Texas - **Decided:** February 18, 1915 - **Citations:** 175 S.W. 837; 1915 Tex. App. LEXIS 447 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Willson - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9828051 ## Opinion text On Motion of Appellants Fee, Jackson, and Stewart for Rehearing. It is urged in the motion that the conclusion reached by us that it appeared from the testimony that plaintiffs were not entitled to recover anything of Eee, Jackson, and Stewart as rents, and therefore that the *845 latter were not entitled to recover of Dunn interest on the money they paid him for the land, is erroneous. As, for reasons hereinafter stated, we have determined to set aside the order heretofore made overruling the motion of appellant Dunn and the motion of appellants Fee, Jackson, and Stewart for a rehearing, and the judgment affirming the judgment of the court below in so far as it was in favor of plaintiffs against said Dunn, Fee, Jackson, and Stewart, and in so far as it was in favor of Fee, Jackson, and Stewart against Dunn, and to remand the cause for a new trial as between those parties, the question made as to whether the conclusions complained of were erroneous or not will not be now further considered. [14,15] In the opinion affirming the judgment we said, with reference to the action of the trial court in excluding as evidence the judgment rendered by a justice court of Marion county, that we were “inclined to think the judgment was not inadmissible on any of the grounds urged against it,” but did not “feel called upon to determine whether it was or not; for if it was admissible the error of the court in excluding it on the record as presented would appear to be harmless.” Why we thought the exclusion of the judgment, if error, should be treated as harmless, was stated in the opinion overruling the motions referred to. Further consideration of the matter has resulted in convincing us that, if the trial court erred in excluding the judgment as evidence on the grounds urged by plaintiffs, the error should not be held to be a harmless one within the meaning of rule 62a ( 149 S. W. x ), referred to in the opinion overruling the motions. The conclusion reached that the bill of exceptions based on the action of the court in excluding the judgment was defective because it did not appear from anything in it that the land had been lawfully sold by virtue of an execution issued on the judgment is adhered to as correct, as is also the conclusion: (1) that, error not having been assigned on the exclusion of the sheriff’s deed as evidence, the bill of exceptions based on the ruling of the court in that respect should not be treated as a part of the record; and (2) if it should be, that, technically, said appellants were in the attitude of acquiescing in the ruling as correct. But we believe it sufficiently otherwise appears from the record that they were not actually in that attitude, and that it would be unjust to hold that they were. That plaintiffs did not understand that to be their position is shown by their brief, in which they not only do not combat, but virtually concede, the facts to be that said appellants offered the deed as evidence, that same as copied in the bill of exceptions properly was a part of the record on this appeal, and that said appellants had not abandoned their contention that the effect of the judgment and sale thereunder, had they been permitted to prove same, would have been to pass to them the title to a part, if not all, of the land in controversy. Under the circumstances of the case, if the court erred in excluding the judgment, we believe it would be unfair to apply rule 62a and hold otherwise than that the error “was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.” The question then is: Did the trial court err in excluding the judgment as evidence on the grounds urged against its admission? The judgment was as follows: “W. L. Harris v. A. U. Wright, J. P. Russell and R. B. Epperson, Executors of B. PI. Epperson, Dee’d. No. 2181. “Attorney, J. Pennman. “Sworn a/c for cash advanced. “A/c Filed March 8th, 1880. “Citation issued same day. “John Grant, J. P. “Cit. returned executed March 16, 1880. “[Signed] M. IC Crawford, Constable. “Court in session this 29th day of March, 1880. “This day coming on to be heard came the plaintiff by his attorney and the said defendants having failed to appear and answer in this behalf but wholly made default, whereupon the said W. S. Harris ought to recover against the said J. P. Russell and R. B. Epperson, as executors of the last will and testament of B. H. Epperson late of Marion county, deceased, and against the said A. U. Wright, his damages by occasion of the premises; and it appearing to the court that the cause of action is an account for money held and received and is proven and established in the manner prescribed by law and it further appearing- to the court that the defendant was duly served with notice of the pendency of this suit and the court having assessed the damages aforesaid at the sum of one hundred and thirteen 32/100 dollars. “It is therefore considered by the court that the said plaintiff, W. S. Harris, do have and recover of the said J. P. Russell and R. B. Ep-person as such executors and the said A. U. Wright the sum of one hundred and thirteen 32/ioo dollars, with interest at the rate of 8 per cent, per annum from date of judgment together with his costs of suit in this behalf expended and that he have his execution. “It is further ordered that the execution issue in favor of the officers of the court against defendants for costs incurred. “John Grant, J. P. “Execution issued September 4, 1880, against defendants for one hundred and thirteen 32/ioo dollars and sent to Montague county, Texas. “Alias execution issued February 19/81 against defendant for judgment $113.32 and for costs and placed in the hands of Judge Penn-man and directed to the sheriff-county. “W. F. J. Graham, J. P. “Returned April 23/81 without any indorsement. “Alias pluries execution issued April 27/81 against defendants for judgment $113.32 and for costs $8.30 and given to -” [16,17] Tbe grounds of the objection were as follows: “(1) It appears therefrom that it was a judgment by default against three defendants and shows on its face and by the recitations therein that only one of the defendants was served with notice or citation, and it was therefore void as to the other defendants not served. “(2) It is immaterial, incompetent, and irrelevant ; it not appearing to have been a judgment *846 against J. P. Russell and R. B. Epperson in their representative capacity as executors of the estate of B. IT. Epperson, deceased, if properly served, so as to bind said estate, but against them personally.” We do not think it should be said that the effect of the recital in the judgment “that the defendant was duly served with notice of the pendency of this suit” was to show that only one, and not each, of the defendants was served with citation issued March 8, 1880, and “returned executed March 16, 1880.” Properly construed, we think the notation that the citation had been “returned executed” meant that it had been executed as to each of the defendants, and that the use of the word “defendant,” instead of “defendants,” in the recitation in the judgment, should be viewed as a clerical error. Certainly it should not be said, if the notation could be looked to, and we think it could be, that it. affirmatively appeared that each of the defendants had not been cited. And, if the notation should not be looked to in connection with the recital in the judgment, we think it nevertheless should not be said that it so appeared. Turner v. City of Houston, 43 S. W. 69 ; Hodges v. Robbins, 23 Tex. Civ. App. 57 , 56 S. W. 565 . The contention that the judgment did not appear to be “against J. P. Russell and R. B. Epperson in their representative capacity as executors of the estate of B. H. Epperson, deceased,” clearly is not tenable. Provisions in the will of said B. H. Epperson, deceased, appointing said Russell and R. B. Epper-son executors, were construed in Epperson v. Reeves, 35 Tex. Civ. App. 167 , 79 S. W. 845 , and were held to create “what is commonly known as an independent administration,” as authorized by article 3362, Vernon’s Statutes. In such an administration it is expressly provided that: “Any person having a debt or claim, against said estate may enforce the payment of the same by suit against the executor of such will; and, when judgment is recovered against the executor, the execution shall run against the estate of the testator in the hands of the ex,-ecutor that may be subject to such debt.” Article 3363, Vernon’s Statutes. And see articles 2004, 2005, Vernon’s Statutes ; Croom v. Winston, 18 Tex. Civ. App. 1 , 43 S. W. 1072 . It is clear, we think, that the judgment was not inadmissible as evidence on either of the grounds relied upon. The order and judgment of this court as specified above will be set aside, the judgment of the court below so far as it adjudicated the rights of the parties, except the appellant Yantis, will be reversed, and the cause as between all the parties to the appeal, except the appellant Yantis, will be remanded to the court below for a new trial. In so far as the judgment of the court below is in favor of other parties against said appellant Yantis, it will be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9828051. Public record. Not legal advice.