Appendix — Sitton v. United States
Supreme Court brief1970
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Decisions of the Supreme Court Since 1868
Discussing Applicability of Seventh Amendment
Guaranties to State Court Litigation
Note—this listing is submitted in support of petitioners’ proposi-
tion that the applicability of Clause Two of the Seventh Amend-
ment to state court litigation has never been directly and necessarily
passed upon. The list is exhaustive and includes many cases where
the discussion was very offhand. While many. sources have been
checked, primary reliance has been Jaid upon the Statute Edition
of Shepard’s United States Citator. That work also contains many
citations discussing the application of the Seventh Amendment in
the Federal courts which have been omitted. Numerous additional
FELA cases brought up from state courts have also been omitted
because there was no express discussion of the Seventh Amendment.
KEY (A)—Civil case originating in state court
(B)—Civil case originating in Federal court
(C)—Criminal case originating in state court
(D)—Case does NOT involve claim that court below re-
examined facts tried by jury.
(E)—Case does involve claim that court below re-examined
facts tried by jury.
(F)-—Civil case in which petitioner claimed violation of 1st
Clause, 7th Admt.; i:e., claimed state law unconstitu-
tionally prohibited trial by jury in his case.
(G)—Case involving application of 7th Amdt. in territories
and D.C.
' (H)—Petitioner attacked state laws allowing majority ver-
dicts or “bobtailed’* juries. °
-(I)—FELA case
(J )—Statement in dissenting opinion
(K)—Statement in concurring opinion -
(L)—Dicta
The Justices v. Murray, 76 U.S. 274. (A) (E) (L) Discussed in text.
Hornbuckle v. Toombs, 85 U.S. 648. (D) (G)
Edwards v. Elliot, 88 U.S. 532. (A) (D) (F) Discussed in text.
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KEY (A)—Civil case originating in state court _
(B)—Civil case originating in Federal court
* (C)—Criminal case originating in state court
(D)—Case does. NOT involve claim that court below re-—
examined facts tried by jury.
(E)—Case does involve claim that court below. re-examined
facts tried by jury.
(F)—Civil case in which petitioner claimed violation of 1st
Clause, 7th Admt.; i.e., claimed state law unconstitu-
tionally prohibited trial by jury in his case.
(G)—Case involving — of 7th Amdt. in territories
and D.C.
(H)—Petitioner attacked state laws allowing majority ver-
dicts or “bobtailed” juries.
(I)—FELA case e
(J )—Statement in dissenting opinion
(K)—Statement in concurring opinion
(L)—Dicta
Insurance Co. v. Dunn, 86 U.S. 214. (A) Where state allows trial
* de novo as a matter of right, it does not violate 7th Amdt. for
federal court to grant trial de novo after removal.
Walker v. Sauvinet, 92 U.S. 90, (A) (D) (F) Discussed in text.
Pearson v. Yewdall, 95 U.S. 294, (A) (D) (L)
Ex parte Virginia, 100 U.S. 339, 354. (C) (D) (J)
Missouri v. Lewis, 101 U.S. 22, 31-32, (A) (D) (L)
Hurtato v. California, 110 U.S. 516, 5383. (C) (D) (F) Grand juries
may be abolished.
L. & N. R. Co. v. Woodson, 134 U.S. 614. (A) (D) State statute
prohibiting more than two new trials for insufficient evidence
not unconstitutional.
Scott v. Neely, 140 U.S. 106, 109. (B) (D) (F) (L)
Cates v. Allen, 149 U.S. 451. (A) (D) (F)
Iowa Cent. R. Co. v. Iowa, 160 U.S. 389, 392. (A) (D) (L) The
dicta stating that no constifutional issue is involved where jury
trial is denied through erroneous interpretation of state law
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must be considered as limited by the “mere error” rule. Brink-
erhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673; Thomp-
son v. Louisville, 362 U.S. 199.
Grayson v. Lynch, 163 U.S. 468, 475. (G)
Walker v. N. M. & S. P. R. Co., 165 U.S. 593. (G)
C.B.&Q. R. Co. v. Chicago, 166 U.S. 226. (A) (D) (L) Dis-
cussed in text.
American Pub. Co v. Fisher, 166 U.S. 464. (G)
Springo{fie v. Thomas, 166 U.S. 707. (G) Discussed in text.
Wilson v. North Carolina, 169 U.S. 586, 595. (A) (D) (F)
Thompson v. Utah, 170 US. 348, 347. (C) (H)
Chappell v. Sulphur, 172 U.S. 472 (A) (D) (F) Statute regulating
jury demand not unconstitutional.
Capital Traction Co. v. Hof, .174 U.S. 1. (E) (G) (L) Justice court
in D.C. is not a common law court: 7th Amdt. does not prohibit
trial de novo.
Maxwell v. Dow, 176 U.S. 581, 586, 598. (C) (H)
Chapin v. Fye, 179 U.S. 127. (A) (D) (L)
Smiley v. Kansas, 196 U.S. 447, 454. (A) (D)
Twining v. New Jersey, 211 U.S. 78, 98. (C) (D) (L)
Creswill v. Grand Lodge, 225 U.S. 246. (A) Verdict reversed by U.S.
Supreme Court where no supporting evidence. Discussed in text.
Slocum v. New York Life Ins. Co., 228 U.S. 364. (B) (E) Held
error to. reverse without granting new trial.
Dill v. Ebey, 229 U.S. 199. (A) (D) (F) |
Minneapolis & St. L. R! Co. v. Bombolis, 241 U.S. 211. (A) (D)
' (H) (I) Discussed in text.
St. L. & S. F. R. Co. v. Brown, 241 U.S. 223. (A) (D) (H) (1)
_ Chesapeake & O. R. Co. v. Carnahan, 241 U.S. 241. (A) (D) (H)
(I)
Louisville & N. R. Co. v. Stewart, 241 U.S. 261. (A) (D) (H) (1D
St. L. & K. C. Land Co. v. Kansas City, 241 U.S. 419, 431. (A) (E)
Discussed in text.
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KEY (A)—Civil case originating in state court
(B)—Civil case originating in Federal court
(C)—Criminal case originating in state court
(D)—Case does NOT involve claim that court below re-
examined facts tried by jury.
- (E)—Case does involve claim that court below re-examined
facts tried by jury.
(F)—Civil case in which petitioner claimed violation of 1st
Clause, 7th Admt.; i.e., claimed state law unconstitu-
~ tionally prohibited trial by jury in his case.
(G)—Case involving application of 7th Amdt. in territories
and D.C.
(H)——Petitioner attacked ‘state laws allowing majority ver-
dicts or “bobtailed” juries. er
-(1)—FELA case
(J )—Statement in dissenting opinion
(K)—Statement in concurring opinion |
(L)—Dicta
Chesapeake & O. R. Co. v. Kelly, 241 U.S. 485. (A) (D) (H) (1)
Chesapeake & O. R. Co. v. Gainey, 241 U.S. 494. (A) (D) (H) (I)
- New York Cent. R. Co. v. White, 243 U.S. 188, 208. (A) (D) (F)
Workmen’s Compensation’
Hawkins v. Bleakly, 243 U.S. 210, 216. (B) (D) (F) Workmen’s
Compensation. See footnote 1.
Mountain Timber Co. v. Washington, 243 US. 219, 235. (A) (D)
(F) See footnote 1.
Wear v. Kansas, 245 U.S. 154. (A) (D) (F)
Chicago, R. I. & P. R. Co. v. Cole, 251 U.S. 54. (A) (D) (L) It is
not unconstitutional to enhance the right of jury trial.
Chicago, R. I. & P. R. Co. v. Ward, 252 U.S. 18, 19. (A) (D) (H)
2? a
Wagner Elec. Co. v. Lyndon, 262 U.S. 226. (A) (E) Discussed in
text. ¥
Southern R. Co. v. Durham, _ U.S. 178. (A) (D) (F)
* Workmen’s Compensation case. Compensation statutes have been
upheld on the theory that they do away with the right of recovery
entirely and nothing is left for the jury to try.
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- Van Oster v. Kansas, 272 U.S. 465. (A) (D) (F)
Dohany v. Rogers; 281 U.S. 362. (A) (D) (F)
Herron v. Southern Pac. Co., 283 U.S. 91. (B) (E) Federal court
not bound by state provision enhancing jury trial; such is con-
trary to common law. .
* Crowell v. Benson, 285 U.S. 22. (B) (D) Longshoremen’s and Har-
bor Worker’s Compensation Act does not violate 7th Amat.
See footnote 1.
‘Brown v. Mississippi, 297 U.S. 278, 285. (C) (D) (L) Discussed in
text.
Palko v. Connecticut, 302 U.S. 319, 324. (C) (D) (L)
United Gas Pub. Serv. Co. v. Texas, 303 U.S. 123, 151. (A) (D)
(K) A state may extend the tse of juries.
Bailey v. Cent. Vt. R. Co., 319 U.S. 350, 358. (A) (E) (I) (J)
Verdict reinstated. Discussed in text.
Brady v. Southern R. Co., 320 U.S. 476, 479. (A) (E) (I) Dis-
cussed in text. .
Malinski v. New York, 324 U.S. 401, 416. (C) (D). Discussed in
text.
- Adamson v. California, 332 U.S. 46, 78. (C) (D) (J) |
Fay v. New York, 332 U.S. 261, 263. (C) (D) (K)
In re Oliver, 333 U.S. 257, 281. (C) (D) (K):
Bute v. Illinois, 333 U.S. 640, 651. (C) (D) (K)
Wilkerson v. McCarthy, 336 U.S. 53, 64. (A) (E) (I) (K) Directed
verdict reversed.
Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 365. (A) (E) (1) eine
dict reinstated. Discussed in text.
Kinsella v. Krueger, 351 U.S. 470, 475. (D) (F) (L) Criminal case
originating in Federal Court. Upholds court martial of civilians
_ abroad. Reversed on rehearing. Reid v. Covert, 354 U.S. 1. Dis-
cussed in text. .
Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 508. (A) (E) (I)
Verdict reinstated. Discussed in. text.
Byrd v. Blue Ridge Co-op., 356 U.S. 525, 587. (B) (E) Jury trial
of all fact issues required. Discussed in text.
Knapp v. Schweitzer, 357 U.S. 371, 379. (C) (D) (L)
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KEY (A)—Civil case originating in-state court
(B)—Civil ease originating in Federal court
(C)—Criminal case originating in state court
(D)—Case does NOT involve claim that court below re-
. amined facts tried by jury.
(E)—Case does involve claim that court below re-examined
facts tried by jury.
(F)—Civil case in which petitioner claimed violation of Ist
Clause, 7th Admt.; iLe., claimed state law unconstitu-
- tionally prohibited trial by jury in his case.
(G)—Case involving application of 7th Amdt. in territories
and DC.
(H)—Petitioner attacked State laws allowing majority ver-
dicts or “bobtailed” juries.
(1)—FELA case
(J) Statement in dissenting opinion
A\)~—-Statement in concurring opinion
(L)—Dicta Si
Bartkus v. IMlinois, 359 U.S. 121, 125. (C) (D) (L)
Dick v. New York Life Ins. Co., 359 US. 437, 455. (B) (E) (J) (L)
Verdict reinstated. Discussed in text.
Magenau v. Aetna Freight Lines, 360 U.S. 273, 282. (B) (E) Jury
trial of all fact issues required. Discussed in text.
Horris v. Penna. R. Co., 361 U.S. 15, 17. (A) (E) (1) (K) Verdict
reinstated. Discussed in text.
Inman v. Baltimore & O. R. Co., 361 US. 138, 146. (A) (E) (1) (J)
Rule against re-examination affirmed but no negligence found.
Take-nothing judgment
Gallick v. Baltimore & O. R. Co., 372 U.S. 108, 125. (A) (E) (1)
(J) Verdict reinstated. Discussed in text.
Simler v. Conner, 372 U.S. 221, 222. (B) (D) Jury trial required.
Abington Sch. Dist. v. Schempp, 374 U.S. 203, 253. (A) (D) (K)
New York Times Co. v. Sullivan, 376 U.S. 254, 285. (A) Rule
~ against re-examination affirmed but no evidence of malice
found. Recovery denied. .
Malloy v. Hogan, 378 US. 1, 4. (C) (D) (L)
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simmons ve. Union News Co., 382 U.S.884(B) (D) (J)
Dissent on denial of certiorari
Katchen v. Landy, 382 U.S.323 (w)(D)
Georgia v. Rachel, 384 U.S,780 (C){D)(L)
Neely v. Eby, 386 U.S.317(B)(E) Dissent that evi-
dence sufficient to support verdict.
Curtis Publishing Co. v. Butts, 388 U.S.130(A)(B) (J)
Detenber v. American Universal Ins.Co.,389 U.S.987
(B)(J) Dissent on denial of certiorari
International Terminal v. N.V.Nederl.Amerik.,
393 U.S.75 (B)(E) Reversed
Grunenthal v. Long Island R.R.Co., 393 U.$.156
(B) (E) (I)
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JUDGMENT OF U.S. DISTRICT COURT
Northern District of Texas
(Entered November 2,1967)
On the 12th day of October, 1967, came on to be
heard in the above numbered-and styled cause the
Motion for Summary Judgment of the United States of
America, Plaintiff; and further came to be heard the
Motion for Discovery and the Motion for Summary Judg~
ment of Russell Harold Sitton and Barbara Sitton, °
Defendants, and further came to be heard the Motions
to Dismiss of Third Party Defendants, Walter Moorman
and wife, the Motion to Dismiss of Third Party De=-
fendants, Leonard Duckworth. Agency, a sole proprie=-
torship owned by Leonard C. Duckworth, Harry Clifton
Summer, Jr.e, Trinity Universal Insurance Company,
and Lawyer's Surety Corporation; and further came
on to be heard the Motion for Summary Judgment of
the Third Party Defendants, American Title Company ‘
of Dallas, American Surety, Trinity Universal! Insurance
Company, Lawyer*®s Surety Corporation, Leonard Duck= .
worth Agency, a sole proprietorship, owned by Leonard
Cc. Duckworth, Katherine H. Brown, Jarvis L. Brown,
Harry Clifton Summer, Jr. and Mr. and Mrs. Walter
J. Moorman; and came each of the aforementioned
parties herein by and through their attorneys of record,
and the Court after having considered -all of the
pleadings, all of the motions and exhibits filed
herein, all affidavits, and having heard the argument
of counsel as to each motion filed herein; the Court
is of the opinion and finds thatas to the motion of
the United States of America For Summary Judgment
there are no genuine issues of any material fact and
that the United States of America is entitled to a
judgment as a matter of law and said Motion for Sum
maty Judgment is in all things granted; and the Court
is further of the opinion and finds that the Motions
to Dismiss filed herein by Third Party Defendants,
Walter J. Moorman and wife, Leonard Duckworth, et
al should be in all things sustained as to the com
plaint and prayer of Third Party Defendants as the
“ state court should have rendered; and the Court having
heard the Motion for Discovery of Defendants, Russell
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Harold Sitton ‘and wife finds that said motion should
be granted insofar as the requested documents are
in the possession of the United States of America
and the Court further finds that the government ex-»
-hibits 1 through 7 are the only such documents in
the possession of the Plaintiff, United States of
America, and such documents are hereby ordered to be
produced; and the Court is further of the opinion
that the Motion for Summary Judgment filed herein
by Russell Harold Sitton and Barbara Sitton as Third
Party Plaintiffs should be in all things overruled;
and the Court is further of the opinion that the
Motions for Summary Judgment filed in this cause by
all of the Third Party Defendants herein against
Russell Harold Sitton and Barbara Sitton should be
in all things sustained as to Third Party Plaintiff's
other complaints and prayers for relief and thet the
Third Party Defendants are entitled to a judgment as
a matter of law, that the Third Party Plaintiffs, , See)
Russell Harold Sitton and wife, Barbara: Sittoh, take | ;
nothing as to said Third Party Defendants;.-and-
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED -
by the Court that the Motion for Summary Judgment of
the United States of America should be in: all things
‘granted and it is ORDERED, ADJUDGED,’ AND DECREED that
, the United States of America, Plaintiff, shall recover
of and from the Defendants, Russéll Harold Sitton
and Barbara Sitton, judgment in’ the sum-of $488.66,
together with interest at the rate of .six: percent
per annum on said sum from this date until paid and
for all costs’of suit, for all of which let execution
issues; and .
IT IS FURTHER ORDERED that the Motions for Discwery .
of Defendants, Russell Harold Sitton and Barbara Sitton,
is granted insofar as the requested documents are in
the pessession of the United States of America and’
the exhibits designated government's exhibits 1 through
7 are found to be the only such documents in the
possession of the Plaintiff, United States of America,
and said documents are ordered to be produced. |
' IT IS FURTHER ORDERED, ADJUDGED; AND DECREED by
the Court that the Motion for Summary, Judgment of the
2.
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Third Party Plaintiffs, Russell Harold Sitton and
Barbara Sitton be and the same is in all things here-
with overruleds and
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED by
the Court that the Motions for Dismissal for want
of jurisdiction of Third Party Defendants, Walter
Moorman and wife, Leonard Duckworth, et al be and
the same are in all things sustained as to the com=
plaint and prayer of Third Party Plaintiffs for this
Court to enter a judgment in said party's favor that
the state court should have entered; and
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED by
the Court that the Motions for Summary Judgment of
the Third Party Defendants be in all things sustained
as to Third Party Plaintiff's remaining complaint
and prayers for relief and it is further ordered, ad=
judged, and décreed that the Third Party Plaintiffs,
Russell Harold Sitton and wife, Barbara Sitton take
nothing of the Third Party Defendants American Title
Company of Dallas, American Insurance Company, Trinity
Universal Insurance Company, Lawyer's Surety Corpora-
tion, Leonard Duckworth Agency, a sole proprietorship,
owned by Leonard C, Duckworth, Katherine H. Brown,
Jarvis R. Brown, Harry Clifton ‘Symmer, Jr., and Mr.
and Mrs. Walter J. Moorman,and that said Third
Party Defendants go hence with their costs.
SIGNED. AND RENDERED this 2nd day of bi a as 9
1967.
W.M. Taylor
\United States District Judge
(R.281-284) :
NOTICE OF APPEAL,
(Filed November 27, 1967)
Notice is hereby given that Russell. Harold Sitton
and Barbara Sitton, Defendants and Third Party Plain-
tiffs above named, hereby appeal to the United States
Court of Appeals for the Fifth Circuit from all parts
of the Final Judgment entered in this action on
November 2, 1967.
(R. 286)
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IN THE
United States Court of Appeals
FOR THE FIFTH: CIRCUIT
No. 25685
RUSSELL HAROLD SITTON and BARBARA SITTON,
Appellants,
versus
UNITED STATES OF AMERICA, ET AL,
Appellees.
Appeal from the United States District Court for the
Northern District of Texas
(July 30, 1969)
Before JONES and COLEMAN, Circuit Judges, bas
CHOATE, District Judge’
JONES, Circuit Judge: In 1960, appellants, Russell
and Barbara Sitton, executed, in Texas,.a note and
_ deed of trust to T. J. Bettes Company to secure a
loan for the purpose of buying a home in Dallas, Texas.
At the request of the Sittons, the note was partially
' guaranteed by the Veterans Administration pursuant
to the Servicemen’s Readjustment Act of 1944. as a-
mended, 38 U.S.C.A. 1803. The note and deed of trust
were subsequently assigned but the T. J. Bettes Com-
~
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SITTON v. USA. ET AL.
rs)
pany continued as servicing agent for the loan. On
September 7, 1962, the Sittons conveyed the property by
deed to W. R. Trout and Joanne Trout who assumed and
promised to pay the note. In 1963,.the loan became de-
linquent. Foreclosure followed in 1964. The property
was sold for $10,000. After crediting the proceeds of the
sale, a balance of $552.20 remained unpaid on the loan
which the Veterans Administration as guarantor paid
to the holder of the secured obligation. The note was
assigned to the Administrator of Veterans Affairs who
is the present holder of the note. The whereabouts of
the Trouts, who received:the property by deed from
the Sittons and promised to pay the indebtedness, is
not disclosed. = :
Thereafter, an action was brought by the United
_ States in the District Court for the Northern District
‘of Texas against the Sittons for a judgment in the
’' sum of $482.97, with interest. The $482.97 represents
the amount due the United States on the note after
all credits. The Sittons appeal from a summary judg-
ment entered against them. —
In the district court, the Sittons filed a third party
complaint against American Title Company, American
Insurance Company, Trinity Universal Insurance Com-
pany, Lawyers Surety Corporation, Katherine H.
Brown, Jarvis Brown, Leonard C. Duckworth, Harry
Clifton Summer, Jr., and Mr. and Mrs. Walter J. Moor-
man, as third party defendants. The Sittons contended
that the names of W. R. Trout and Joanne Trout i
subs‘ituted for the name of appellee Walter J. Moor-
yo Rosey Taye ee
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SITTON v. U.S.A., ET AL.
man as grantee and that the third party defendants
conspired together to alter the Sittons’ deed by sub-
stituting the Trouts in order that appellee Moorman
might not become liable on a covenent to assume the -
mortgage. The Sittons complain that as a result of
this alleged conspiracy they sustained actual and ex- -
emplary damages totalling $90,000. They concede that
this identical issue was heard in the Texas State courts.
The Texas Courts of Civil Appeals affirmed the state
district court’s judgment that appellant should take
nothing in his cause of aciion against the third party
appellees. In Sitton et vx v. Ainerican Title Company ~
of Dallas, Tex. Civ. App. 1255. 356 S.W.2d 899. The
Texas Supreme Court refused to grant the Sittons’ ap-
plication for writ cf error. The Supreme Court of the
United States denied certiorari. Sition v. American
Title Co. of Dallas. et al, 385 US. 975. 87 S.Ct. 501,
“17 LEd2d 437, reh. den. 385 U.S. 1033, 87 S.Ct. 739,
17 L.Ed.2d 681. -
Despite the adverse decision of the Texas courts,
the Sittons assert that they are entitled to relief in
the Federal court. Appellees answered the third party
‘ complaint by denying the allegations, and asserted af-
firmative defenses of estoppel by judgment, res judi-
cata, and the Texas two-year statute of limitations.
The district court granted appellees’ motion for sum-
mary judgment and also entered judgment dismissing
for want of jurisdiction the Sittons’ third party com-
plaint. -
We turn first to Mrs. Sitton’s compelling argument
that the Texas law of coverture,.in force when the
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; SITTON v. U.S.A, ET AL.
contract with the Government was made, is a complete
defense to recovery on the note as against her. Re-
cently this Court has held that Federal law is to be
im applied to the question ‘of whether a deficiency judg-
ment should be granted the United States for balances
due following foreclosure of mortgages on properties
sold to non-veterans under the Vendee Account Loan '
program of the Administrator of Veterans Affairs. U-
nited States v. Wells, 5th Cir. 1968, 403 F.2d 596. In
Wells, we stated that Federal law had been applied
by the courts with respect to the Veterans Loan Guar-
anty program. 403 F.2d at 598. While this is generally
the case, where, as here, the question involves a state
law in the “peculiarly state province of family or fam-
ily-property arrangements,” the peculiarly local juris-
diction of the states should not be invaded. United
States v. Yazell, 382 U.S. 341, 353, 86 S.Ct. 500, 15 L.Ed.
2d 404.
The Government relies in part on United States v.
Helz, 6th Cir. 1963, 314 F.2d 301, to support its con-
tention that the Texas law of coverture should not bar
recovery against Mrs. Sitton. In United States v. Ya-
zell, 5th Cir. 1964, 334 F.2d 454, this Court specifically
rejected the reasoning of the Helz opinion as com-
pletely unfounded and without authority. In affirming
our decision, United States v. Yazell, supra, the Su-
preme Court stated:
“Both theory and the nrecedents of this
Court teach us solicitude for state interests,
particularly in the field of family and family-
4 property arrangements. They should be over-
ridden by the federal courts only where clear
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A-15
SITTON v. U.S.A. ET AL.
and substantial interests of the National Gov-
ernment, which cannot be served consistently
with respect for such state interests, will suf-
fer major damage if the state law is applied.
“Each state has its complex of family and
family-property arrangements. There is pre-
sented in this case no reason for breaching
them. We have no federal law relating to the
protection of the separate property of married
women. We should not here invent one and
impose it upon the States, despite our personal
distaste for coverture provisions such as those
involved in this case, Nor should we estab-
lish a principle which might cast doubt upon
the effectiveness in relevant types of federal
suits of the laws of 11 other States relating
to the contractual positions of married women,
which, as the Government’s brief warns us,
would be affected by our decision in the pres-
ent case. Clearly, in the case of these ‘SBA
loans there is no “federal interest” which jus-
tifies invading the peculiarly local jurisdiction
of these States, in disregard of their laws, ahd
of the subtleties reflected by the differences
in the laws of the various States which gen-
erally reflect important and carefully evolved
state arrangements designed to serve multi-
ple purposes.
> 9
“The'decisions of this Court do not compel
or embrace the result sought by the Govern-
ment. None of the cases in which this Court
has devised and applied a federal principle
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SITTON v. U.S.A., ET AL.
of law superseding state law involved an is-
sue arising from an individually negotiated
contract. None of these cases permitted fed-
eral imposition and enforcement of liability on
a person who, according to state law, was not |
competent to contract. None of these cases
overrode state law in the peculiarly state prov-.
ince of family or family-property arrange-
ments.” 382 U.S. 352-353.
The Veterans Loan Guaranty program will not suffer
major damage if the Texas law of coverture is applied
in this case. This is especially so in light of the fact
that the Texas law establishing the doctrine of cover-
ture was repealed in 1963."
ee
We alsd note that there is no clear statutory authority
for overriding the Texas domestic relations law in this
case, nor do we have regulations promulgated pursuant
to a statute which require us to invade the strong state
interest involved here. These factors distinguish United
State’ v. Shimer, 367 U.S. 374, 81 S.Ct. 1554, 6 L.Ed.2d
908, and McKnight v. United States, 9th Cir. 1958, 259
F.2d 540. Furthermore, in United States v. Yazell, su-
pra, the Supreme Court recognized that there is “no
federal law relating to the protection of the separate:
property of married women.” 382 U.S. at 352-353.
Since we find that-under the’ law of Texas, where
the contract was made, Mrs. Sitton was protected by
1Tex. Rev. Civ. Stat. Ann. Art 4626 as amended by Acts 1963, 58th
Leg., p. 11887 ch. 472, § 6. See also Tex. Rev, Civ. Stat. Ann. Art.
4625 as amended by Acts 1967, 60th Leg., p. 739, ch. 309 ie F
eal
Ao-ls
SITTON v. U.S.A., ET AL.
the doctrine of coverture from personal liability upon
the Contract, the judgment of the district court with.
respect to her must be reversed.
Little discussion is necessary to dispose of the Sit-
tons’ argument with respect to their third party claim. ‘
Title 28 U.S.C.A. § 1345 provides that the district courts
have original jurisdiction of all civil actions where
the United States is a plaintiff. Even conceding that
this section may authorize third party claims, it can
in no way be interpreted as a grant to the district
courts of the power to act in an ‘appellate capacity
to review the propriety of a state court decision. In
the prayer of their third party complaint the Sittons
expressly asked the district court “that this Court ren-
der such judgment against third ‘party defendants as
the State Court should have rendered.” The appellants
now seek to have the federal district court review a
state court decision alleged to be erroneous. The dis-
trict court can: not do this. The jurisdiction possessed.
by the District Courts of the United States is strictly
original. “A federal district court has no original juris-
diction to reverse or modify the judgment of a state
court.” Hanna v. Home Insurance Company, 5th Cir.
1960, 281 F.2d 298, cert. denied 365 ‘U.S. 838, 81 S.Ct.
_ 751, 5 L.Ed.2d 747. Federal courts have no authority
to act as an appellate arm of the state courts. Rooker’
v. Fidelity Trust Company, 263 U.S. 413, 44 S.Ct. 149,
68 L.Ed. 362; Williamson v. Puerifoy, 5th Cir. 1963,
316 F.2d 774, cert. denied 375 U/S. 967, 84 S.Ct. 485, .
11 L.Ed.2d 416; Hanna v. Home Insurance Company,
supra; Manufacturers Record Pub. Co. v. Lauer, 5th
Cir. 1959, 268 F.2d 187, cert. denied 361 US. 913, 80
A-18' 2
: SITTON v. U. SA. ET AL.
S.Ct. 258, 4 L.Ed.2d 185; Resolute Insurance Com-
pany. v. State of North CHrolina, 4th Cir. 1968, 397 F.2d
586, cert. denied US. , 89 S.Ct. 446, L.Ed.2d
: Jones v. Hulse, 8th Cir. 1968, 391 F.2d 198; Pilkinton
v. Pilkinton, 8th Cir. 1968, 389 F.2d 32; Wood v. Con-
neaut Lake Park, Inc., 3rd Cir. 1967, 386 F. 2d 121. See
° also Warriner v. Fink, 5th Cir. 1962, 307 F.2d 933, cert.
denied 372 U.S. 943, 83 S.Ct. 937, 9 L.Ed.2d 969; Annot. 13 -_
A.L.R.2d 390, 467. The Sittons’ proper route of appeal
was to the Supreme Court of Texas and then by cer-
tiorari to the United States Supreme Court. That course
was followed without success.
Furthermore, the dismissal of the third party com-
plaint was clearly proper on the ground of res judicata.
The Sittons’ claims in the district court were the same
as in the state court litigation. ‘‘A final, valid deter-
‘mihation on the merits is conclusive on the parties
and those in privity with them as to the matters ad-
judged, or which should have been litigated, in another
action or proceeding involving the same cause of ac-
tion.” 3 Moore, Federal Practice, par. 0.405 [3], pp.
631-632 (2 Ed. 1965). While a federal court has juris-
diction to hear a collateral attack on a state court
judgment which is alleged to have been obtained by
fraud, deception, accident, or ‘mistake,? this case af-
fords no basis for a collateral attack in a federal court.
Hence the district court properly dismissed the third
party complaint. : .
2See, e.g., Atchison, T. & S.F. Ry. v. Wells, 265 U.S. 101, 44 1 S.Ct.
469, 68 L.Ed. 928; 3 Moore,. Federal Practice, Par. 0.407 et
seq. (2d Ed. 1965).
A-19
- 32
SITTON v. tease ET AL.
Two other matters. remain to be noted. First, the
' Sittons contend that the district court erred in holding
that the affidavits and exhibits set forth in the Gov-
ernment’s motion for summary judgment showed ‘‘that
there is no genuine issue as to any,material fact and
that the moving party is entitled to a judgment as a
matter of law.” The Sittons filed no counteraffidavits.
They attack the form of the affidavits and exhibits and |
not their substance. Nothing appears to show that there
existed any genuine issue of material fact. We agree
_with the district court that the showing made by the
Government was: sufficient. E.g., Liberty Leasing Co..
v. Hillsum Sales Corp., 5th Cir. 1967, 380 F.2d 1013;
Robbins v. Gould, 5th.Cir. 1960; 278 F.2d 116.
Sa] Finally, the Sittons assert that the interest rate on
the judgment-was improperly included at 6%. Veterans
Administration regulations provide for interest at 4%
per annum on the deficiency after a foreclosure sale,
but, the regulations are silent regarding interest after
judgment. They argue that the general congressional
intent to favor veterans as a class, even after default
and foreclosure, requires that the 4% rate continue
after judgment.
The judgment in this case correctly included interest
from the date of judgment at 6% per annum. Such
_ interest is to be calculated at the rate allowed by State
law. 28 U.S.C.A. § 1961. The law of Texas establishes
that where obligations sued on bear interest at arate
less than 6% per annum, the judgment will bear inter-
est at a rate of 6% per annum after its date. Vernon’s
» Tex. Civ. Stat., Title 79, Art. 5072; Linz v. Eastland
AEA EE A ASNT AL Tt METI R TEs SUE RETR RENO th MCE ih ts
A= 20
SITTON v. U.S.A., ET AL.
County, Tex. Comm. App.>1931, 39 S.W.2d 599. See also
Galveston County Drainage Dist. No. 3 v. Foster, 5th .
Cir. 1922, 284 F. 932. To hold that the -congressibnal
intent to benefit veterans continues after judgment
would require clearer expression than is demonstrated
in the statutes or regulations.
We see no error in the judgment of the district court
dismissing the third shale complaint and in the entry
of summary judgment for the third party defendants
and these judgments are affirmed. We find no error in
the entry of & judgment for .the United States and
against Russell Sitton and the judgment against him
is affirmed. The judgment against Barbara Sitton is
in error and is reversed. AFFIRMED IN PART, AND
REVERSED IN PART.
(R.292)
‘JUDGMENT
(Entered July 30,. 1969)
This cause came on to be heard on the transcript
of the record from the United States District Court —
for the Northern District of Texas, and was argued
by counsel;
- ON CONSIDERATION WHEREOF, It is now here ordered
and adjudged by this Court that the judgment of the
said District Court in this cause be, and the same
is hereby, affirmed in part and reversed in part in
accordance with the opinion of this Court.
It is further ordered that Russell Harold Sitton
spay the costs on appeal to be taxed by the Clerk
of this Court. :
‘TSsued as Mandate | > ARs293). ~~
i. Pee M's 1a es bie
2 a : :
EXTENSION OF TIME ese ae
2. ct (Entered August 8, 1969) re oe
| . This unopposed motion is hereby granted by. ~ ere:
| the Clerk for the Court by direction this 8 day _&
: of Aug, 1969, granted to 9/2, rehearing. ees
5 : ? : et “Bie :
4 « . EDWARD W. WADSWORTH ee
: CLERK, U.S. COURT OF APPEALS” ° . F&F
4 aka t ne BY_G.F.»Ganucheau_ a :
: eee oN
ane *; 3
2
EXTENSION OF TIME °
(Entered September 2,1969)
r
.
Extension granted to 9/4/69. Petition for Rehearing. -:
ante ees
? :
: : lo :
i - q
: i
: 5
= | |
a JUDGMENT,ON PETITION FOR REHEARING ». ;
. - (Rendered without Opinion) i
: ‘\NEntered October 22, 1969) Bae thee F
4 Before Jones and Coleman, Circuit Judges,and°
| Choate, District Judge. 7 .
4 PER CURIAM: IT IS ORDERED that the petition :
E: for rehearing filed in the above entitled and ; .
a numbered cause be and the same is hereby DENIED. | £
Pet. for rehearing filed 9/2/69. Pet. for re- |
hearing denied 10/22/69 + ;
| : | tr.294)
\ ne :
Ves Aer aie ae eer
“A= 22 .
‘TRIAL COURT PROCEEDINGS +
> Testimony of Daniel H. McMaster:
Direct Examination By Mr. Howell:
“Q, Would you give your name and occupation to the
jury, please? A. Daniel H. McMaster. I am a loan
service representative, Veterans Administration. (Testi- .
mony 369). pee
* * * * \.
“Q, What transpired when you called on Trout? A.
* * * He then told me he was Moorman’s employee and
i asked him, as I recall, if he had any papers showing
that he had title to the property and_he gave me the
deed.
“Q. Mr. McMaster, at this time, I will hand _ you /, »
. Plaintiffs’ Exhibit No. 3 and ask you if you have
it- before? A. Yes, this is the deed Trout gave to me
that night. [See A-4o infra]. i
“Q. Thank you, sir. Mr. McMaster, I will ask you
if you subsequently called on any other persons with
reference to this transaction? A. I then called or: Moor-
man * * * and I showed it te-Moorman.
“Q. What were the discussions at that time? A. I
asked him toNook at the deed carefully and he could
see where his name was on the deed and that had been
erased and Trout’s name had been written in. He said .
he knew that and then I asked him if he would—did he -
think that was fair to Sitton and would he make up
the payments. He said he would not, that was Sitton’s
responsibility. (Testimony 371, 372) ° |
\ * * * *& &
— “Q, (By Mr. Howell) Mr. McMaster, without going
| into what you said, tell me what Mr. Moorman said
further out there that day as far 4s you can recall. A.
Well, he said that was Moorman’s—I mean Sitton’s re-
sponsibility, that he washed his hands of it or something
wee
A-23 a ahem
_ to that effect, Then I asked him iti changed the deed.
[Objection overruled ]
“Q. (By Mr. -Howell) You aitehl him who had
changed the deed, Mr. McMaster, and what was ‘his
reply? A. He told me that Mrs. Brown of the American
Title Company had changed the deed. .
“Q. What else was said in that meeting? A. I, asked
him then did he know that was wrong and he said then
ea he would wash his hands of the matter, so I asked him.
ie where ‘Mrs. Brown’s office was and I proceeded to her
4 office.
“Q, I see, and did you ciel wa ae wae Mrs. . .
Brown? A. I met Mrs. Brown, I showed her my Govern-- —S~
ment identification and I asked her, showed her the :
deed: and I asked her did she change that and she said
she did. I then asked her was she in the habit of doing
that. As I recall she did that when it was necessary.
“Q. That was her’ statement to you? A. Yes, but it
might not have been in those words exactly. I wrote ‘it
down on the Government’s — (Testimony, 373- -
~ 9375)
a a
Cross Examination By Mr. Welch: (Testimony 380)
; * *¢ * & * fe ree ; :
“Q. Well, now, you were assuming that he assumed
the debt, weren’t you? A. No, he told me he had...
: “Q. “Who told you he had? A. Moorman.
“Q. Moorman told you he.assumed the debt? A. That
‘he had Mrs. Brown take his name off of the deed and
put Trout’s on there. »
“Q. But you just said that Siccecaash told you he had
assumed: the debt? A. Yes. He purchased the house
from Sitton.
~ “Q. He told you he had purchased the house from
Sitton? A. Yes. ;
c
pice | i)
_ “Q. He didn’t tell you he had-assumed the debt? A. -
Yes, and it is in the deed also, see, it is an assumed
agreement to pay. « :
“Q. In your conversation with Moorman did Mr.
Moorman say,‘I assumed the debt’? A. Well, now, since
I don’t have the record I would just say yes.
«Q. Do you remember him saying those ‘words, ‘I .
assumed the-indebtedness’? A. Well, I remember jhim
telling me about trading houses with Sitton. I believe
they traded houses. Sitton assumed his house and he .
assumed Sitton’s house, yes. :
“Q. But Mr. Moorman didn’t tell you that he assumed —
- Sitton’s indebtedness? A. Yes.
“Q. He simply said they just traded houses? A. No,
he assumed the debt, each one assumed the’ debt.. See,
that is one of our questions each man we call on we
ask him that -point. (Testimony 382-383)
@ ° ‘ F
* * * * *
“Q. And you are able‘ to remember that Mrs. Brown -
told you that she changed the name on the deed? A.
Certainly did, I was surprised. Yes. See, I am a notary
also, (Testimony 385)
* * * * *
“Q. Then what did you tell her? A. I then introduced
myself as I do and I showed her the deed and I asked
her if she knew Mr. Moorman and then showed her
the change.,
..“Q, Did she say whether or not she knew Mr. Moor-
man? A. Yes, she did. (Testimony 391)
and then I
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‘when neecssary,’ that was not her exact words. I wrote
that on the report. (Testimony 391)
* * * * *
“Q. And are you sure that she said she aed it or
that it was changed in = office? A. ‘No, she said she
changed it. Ng
“Q. She said she changed it? A. That’s right.
“Q. What were the words when she said she changed
it? A. I don’t know, that goes back to the report, I
don’t have the report. You asked me a statement and
she told me she changed it.
“Q. You are here testifying from your © own personal
knowledge? A. That’s right.
“Q. You say she said she changed it? A. That's rig
(Testimony 392)
\
Cross Examination By Mr. Rugh: (Testimony 401) ~
Se See
“Q. Now, Mr. McMaster, you stated previously, I
believe, that it is your testimony that Mrs. Brown told
you that she had ‘changed the deed? A. At Moorman’s
_ ; request, yes.
““Q. Did she say why she had done this if she did so
do it. A. No, our conversation that day was very brief.
“Q Did she say that anyone had asked her to do this
or that she did it pursuant to anyone’s instructions?
A. As I recall, Moorman told me he had her do it and
she told me she did it.” (Testimony 403)
Testiniony of Walter J. Moorman
| Direct Examination By Mr. Howell:
~ “Q. Tell me the name of the oon you dealt with
over at the Duckworth Agency. A. I recall Mr. Harry
a
A-26
Sumnier’s name there; there may: aie: been senm I
don’t remember ‘any others.
“Q. You dealt primarily with Mr. Summer? A, Yes,
most of my dealings with them were by telephone and
on occasion I mi = not have known who I was speaking ~
to. Mr. Summer handled the personal transactions.
(Testimony 91) Soe ;
a ek aa ae
“Q. When did you advise Mr. Site that you
’ wanted to have W. R. Trout buy the house? [The Sit-
tons’ G.I. home on Andover which Moorman was taking
in trade] A. I don’t recall the date.
“Q. Well, how long would it have been afters this
J ufy 14th? [date “of initial sales contract, P's. Ex. 1,
A-40 infra] A: I don’t remember, that.
“Q. Would it have been before September 7th? [date
‘of execution of petitioners’ G.I. deed, A-40] A. I don’t
recall dates.
. “Q. Would it have been after September the 7th? A.
I don’t: recall these dates. (Testimony 97) — ;
* * * a x
, “Q. When did the Sittons move? A. I don’t know.
“Q. The house [on Pleasant Drive which the Sittons
were buying from Moorman] was. vacant, I believe, is
that right, sir? A. x es. -
“Q. Did you give them permission to move in before
you got your money? A. I don’t think—no, sir.
*€Q. Then this call you say you made to the title
company which you can’t remember the name of was.
made after the Sittons had signed this September 7th
deed, is that right, sir? * * * [objection overruled] A
ae don’t know when the call was made as to dates.
“Q. (By Mr. Howell) But you have testified that you
imagined it was made after they moved, the Sito
wee
2
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moved into your house? A. I don’t know when they. =
I don’t know when they moved. (Testimony 100-101)
* eo © @fe '¢
“Q. When did it come to Your attention, if it ever
did, this loan was in trouble? MR. VANCE: We object.
A. I don’t remember exactly the fact-I ever found it in
' trouble. * * * [objection overruled ] .
“«Q, (By Mr. Howell) I will ‘ask you, sir, if you -re-
ceived any telephone calls from Mrs. Sitton regarding
this loan? A. I don’t recall that.
“Q. No recollection whatsoever? A. Not as of the con-
versation, no, sir.
“Q. Well, do you recall the event? A. I don’t really
remember it, no, sir.
“Q: After you became advised that. this loan was in
trouble what did you do? A. In regard to what? -
“Q. In regard to the Sittons’ GI loan? A. Nothing.
“Q. Nothing at all? A. No, sir. (Testimony 106-107) .
*. * * * *
Deposition Testimony~Questions By Mr. Howell:
: “Q. Whose idea was it to have the deed run: straight
fram the Sittons to Trout? A. Mine.
“Q. When did you first get this idea? A. As soon as
Mr. Trout indicated that he and his wife wére interested
- and liked the house and would buy it. camara
* 98, 99) |
‘ f :
“Q. Was that before or after Mr. and Mrs. Sitton
’ moved, * * * A. I don’t remember that. I imagine it
was after, but I am not certain. ‘(Testimony 99) |
* * * * *
“Q. Had you ever doné any business with Harry.
Summer or the Duckworth Agency before? A. I don’t :
9 think so.
A-28
“Q. Have you done any. business with them since?
A. Yes, sir, I have. oS
“Q. And what agent or associates of Duckworth
Agency have you dealt with there primarily? A. The
‘ game gentlemen.
“Q-: Harry Summer? A. Yes, sir. (Testimony 417)
¥ * * * *
“Q. When did you receive word that the Sittons’ loan
had gone through and that the real estate deal between -
you and them was to be closed? A. I don’t recall. .
“Q. Who did you get that advice frem? A. I would
assume Mr. Summer phoned me when it was completed
with the Duckworth Agency. (Testimony 420-421) F
* * * * *
“Q. When you went over to the title.company to sign
the papers, who did you see? A. I don’t know that.
“Q. Was it a man or lady at the title company official
[sic|? A. I think it was a man, I am not certain of that.
“Q. Did you get a check from the title company while
you were there? A. I don’t remember that.
“Q. Did you turn the keys to the property over to
the Sittons in person? A. I don’t remember.
“Q. When did you get the keys to the house on And-
over? A. I don”, remember that.
“Q. Did you ever get them? A. I don’t know. Ce ee
“Q. Did you ever tell Mr. Summer that you were
going to have the deed made straight from the Sittons _
to Trout? A. I don’t remember telling him that. (Testi-
_ mony 421, 422) ik sete ; .
: > . |
“Q. You don’t know whether you ever told Mr. Sum-
mer about the matter or not? A. That’s correct. ('Testi-
mony 423) a ae
i
*
6. Oe: *
> ~~?
A-29
. +». &:en8
“Q. Did you ever tell him? A. I don’t recall telling
him. (Testimony 423)
* * * * *
“Q. Mr. Moorman, I am going to hand you Plaintiffs’
Exhibit 1 [the petitioners’ G.I. deed; later re-marked
as Ps’ Ex. 3] and ask you if you have ever seen that
instrument before? A, I couldn’t tell you if I have seen
it or not. (Testimony 424) "
e 6 *e«-f -g
“Q. Do you know Mrs. Brown at the American Title
Company office in Casa Linda. A. No, sir.
“Q. You did go to Casa Linda Office, didn’t you? A.
I ar not sure. I had in mind that I had gone over on
Scyene Road. :
“Q. Was Plaintiffs’ Exhibit 1 shown tH you on the
day you signed the papers? A. I don’t know that. (Tes-
timony 424, 425)
* * * * *
“Q. How miSny times did you go to the office of
American Title Company? Any office of American Title
Company with reference to this Sitton deal? A. I don’t
remember that. (Testimony 425)
* * * * *
“Q. You made at least one telephone call over there?
A. Yes, sir.
“Q. You are sure you made at least one? A. Yes, sir,
~~-“Q. Do you know whether you made any more? A.
I don’t know’ <x
“Q. Do you know whom you talked to at the title
company on those telephone calls? A. No. .
“Q. Man or woman? A. I don’t know.
“Q. Did you ever call the Sittons and ask their per-
mission to make a sale direct from them to Trout?
A. No, sir. (Testimony 426)
“Q. Before you made a trade with Mr. Trout what
did you do to find out whether or not he was financially
responsible? A. Nothing. (Testimony 426-427)
* * * * *
“Q. Have you talked to Mrs. Sitton at any other
times on the phone? A. It seems to me she called me
one time, I am not certain. (Testimony 429)
* * * * *
“Q. Did you ever tell Harry Summer what you were
going to do with the Andover property after you took
it in trade? A. I am sure Mr. Summer knows, 1 don’t
remember specifically telling him, no, sir.
“Q. Where does W. R. Trout work now? A. He works
for me. (Testimony 429)
x * * * *
“Q, Well, after you learned that he had moved out,
what did you do to him? A. What did I do to him?
“Q. Yes. A. Nothing. What do you mean, what did
I do to him? (Testimony 430)
* * *« * *
“Q. Did you bawl him out? A. No, sir.
“Q. Have you ever tried to get him to pay up the
deficiency on this GI loan? A. No, I haven't.
“Q. Did you ever ask him to? A. No.
“Q. Did you ever offer to take it out of his wages and
work it out? A. No.
“Q. Did you ever offer to fire him unless he did some-
thing to get this thing straightened up? A. I did not.
_ “MR. HOWELL: That’s all I have.”
exY vor “
Steer dre AO ee ee
Ba aA ya sap ’
Mra eR on k eet
A-31_
“Q. (By Mr. Newberry) His financial condition is his
business, isn’t it? THE WITNESS: That’s right.
“MR. NEWBERRY: And it is not yours? THE WIT-
NESS: That’s correct. (Testimony 430-431) °
Testimony of William Robert Trout
Direct Examination By Mr. Howell:
“Q. How long have you been employed by Moorman
Brothers Plumbing Company? A. Eight years.
“Q. Still working there? A. Yes.
“Q. State the facts as to how you happened to move
to this address on Andover. A. Well, I had spoke to
Mr. Moorman about buying his house on Pleasant Drive
“and he taken this house on Andover in trade in it and
he asked if I would be interested in buying it.
“Q. Did you buy*it from Mr. Moorman? A. Yes, sir.
“Q. Did you go out and look at it first? A. Yes, sir.
“Q. State the facts as to who went along with you, if
anyone. A. Well, the first time I went, Mr. Moorman
and myself.
“Q. Was the house occupied or vacant on that trip?
A. It was vacant.
“Q. How did you get. the key? A. I went to Mr.
Sitton’s house myself and got it.
“Q. Where were the Sittons living at that time? A.
On Pleasant Drive.
“Q. That is the first time you saw the house on
Andover, the Sittons had already moved? A. Yes, sir.
screed 123, 124)
* * * tig *
“Q. Going back to April of 1962, about four or five
months before you moved into this house on Pleasant
Drive,—excuse me, before you moved into this house on
REA ERIRRTae ee Rema
Oe A SRR RR, 6
e:
7 A=32
3 Andover, Mr. Trout, did you apply for a loan, mortgage 3
‘loan in your own name? A. I did.
‘ “Q. What was the result of that application? A. It
,was turned down.
_. “Q. Mr. Moorman know of that? A. No, he didn’t. —
“Q, Did you advise him of that at the time you were
dealing with him? A. No, I didn’t.
“Q. On the Andover house? A. No, sir.
“Q. Did he ask you? A. No, sir. - :
“Q. Did he ask.you ‘anything about your credit or
financial standing at the time he sold you the house
on Andover? A. I don’t remember. (‘Testimony 130)
* * * * *
“Q. (By Mr. Howell) When did Mr. Moorman make
any mention to you about your moving out of the
house? [objection overruled with qualification] A. It
was about approximately two months, I guess, or maybe
not quite so long.
“Q. About two months after you had moved out?
A. Yes. (Testimony 133)
: % * x * * - y
“Q. Did Mr. Moorman offer to help you through your
financial difficulties so you coujd save the house? A. I
didn’t ask for help. | ee
“Q. And’ he didn’t offer. A. He didn’t know I had
moved until two months later.
“Q. Did Mr. Moorman tell you that you should pay
any mortgage deficiencies or order you to? A. No. (Tes-
timony 135)
Testimony of Kathryn H. Brown
Direct’ Examination By Mr. Howell: |
“Q. Mrs. Brown, can you tell the jury how the name
Walter Moorman ‘got erased out of this deed and the
A-33
name of W. R. Trout and wife, Joanne Trout, gat in-
serted? A. As far as knowing how it got changed, no.
I understand Mr. Moorman called our office and asked
us to—
THE COURT: Just a minute, what you know tell us,
but not what you have heard. We want your knowledge.
THE WITNESS: I have no recollection of it being -
changed.
“Q. (By Mr. Howell) Nous whatsoever? A.. None
whatsoever.
“Q. Do you have any | sano of the Sittons. com-
ing in to sign? A. No, I do not. (Testimony 54)
* * * * *
“Q. (By Mr. Howell) Mrs. Brown, I will hand you
what has been marked as Plaintiffs’ Exhibit No. 5 and
ask you to tell me what that is. A. It is a copy of the ;
_ purchaser’s statement. wherein Sitton purchased from
-Moormans.
“Q. Sitton purchased from whom, ma’am? A. Moor-
man. Seay. 58)
* * * x *
“Q, You have any copies of any statements from
Moorman to Trout? A. I had no dealings with Mr.
Trout. :
“Q. Has he ever been in your office? A. No, he has
not. (Testimony 59)
gene aes ges ARS
“Q. Mrs. Brown, can you explain why that the Sit-
tons came in your office om September the 7th and
signed the papers and you took their notarial acknowl-
edgement on that date, why their deéd did not get to
the County Clerk’s. office until September 21st. A. Well,
there could be several reasons, erasers: 69)
A-34 AR Ry ; ’
“Q. (By Mr. Howell) Mrs. Brown, that deed was :
altered sometime betweén September the 7th and Sep- a
tember the 21st when it finally got down here_to the
County Clerk’s office for tecording, isn’t ‘that -correct? .
A. It was altered sometime prior to it having been signed ©
on September 7th.
~“Q. What do you base—how do you base your con-
clusion, Mrs. Brown? A. Deeds are not altered after they
have been signed.
“Q. These nine erasures that were made were ‘made
before the Sittons — is that your testirhony? A.
Yes.
“Q. That is your direct. recollection, you remember
that, Mrs. Brown? A. I do not remember the Sittons
being in the office but I do not change the instrument
after it has been signed and acknowledged. (Testimony
70-71)
* * * * *
\
“Q. That is ‘a mighty Yong delay getting an instru-
ment down to the courthouse, isn’t it, Mrs. Brown? A.
No, it isn’t long at all. (‘Testimony 71)
oe eee eee fee
“Q. Mrs. Brown, you told me you don’t remember
the Sittons coming in at all. Do you recognize the Sit-
tons? A»No, I. do not. I do not remember ever seeing
them before. |
ay All right, ma’am.. Do you-ditectly recall Mr. Moor-
man’coming into your office? A. I do not.
‘“Q. Do you recognize Mr. Moorman sitting here in
_the courtroom? A. As having seén him before, no. (Tes-
timony 72-73)
A-35
eo 2 6.8:
“Q. You have handled quite a bit of business with
"Mr. Summer, haven’t you? A. Yes; I have. (Testimony
73)
* * * * *
“Q. You are talking to him all the time, aren’t you?
A. On his deals, yes. , :
“Q. And you were talking to him frequently during
August and September, 1962? A. I feel that we were.
(Testimony 74) |
* * * * * Ss
“Q. Where did 2p get the additional information
necessary to preparek Plaintiffs’, Exhibit No. 3? [Pe-
titioners’ deed] A. We usually—in always request
the agent or whoever is handling théNransaction to
secure * * * something to work from in preparing the
deed. ei i
“Q. That would be Mr. Suxomer in this case, is that
right? A, Mr. Summer or some representative of his.
“Q. they sent you the additional information
necessary for the preparation of this deed, Plaintiffs’
Exhibit No. 3? A. Yes, we were furnished the title policy’
issued to Mr. Sitton.” (Our emphasis) (Testimony
77-78) ~ ore
* * * * *
“Q. (By Mr. Howell) Do you directly recall Mr.
Moorman making such a telephone — — * * * [objec-
tion overruled] THE WITNESS: I do not remember
* ss. *¢ #* «&
“Q. Your testimony now is that you do not remem
ber or recall any such transaction, is that right? A. No,
I do not remember closing this particular transaction.
Ae L
reg! / A=36 |
“Q, The statement you made in your affidavit is not
correct? [Ps’ Ex. 11, See Below] A. The statement I
made in my affidavit I suppose you would say is from -
the way things would have to happen. (Testimony
82-83) ae ees
Deposition Testimony——Questions By Mr. Howell:
“Q. Do you know what secretary or typist made
those-erasures? Aa No.
*Q. Were ey made in the office out there at 114
Casa Linda _ ? A. I do not know, looks like it was .
and I feel sure. it must have been.
_ .“Q. Is it your practice to take acknowledgment on
instruments containing substantial erasures and retyp-
ing? A. Yes, as long as they signed it in your presence.
(Testimony 414)
4
* * * * *
“Q. You erase things out and type in different pro-
visions? A. Not after it is signed but before it is signed,
yes. a : , 4 anes
“Q. It is a standard practice out there? A. It is a
‘standard practice anywhere.” (Testimony 414-415)
ac ws Affidavit in Support of
‘ .Motion for Summary Judgment
_(Ps’ Ex. 11, Exhibit Vol.)
“ON THIS the 18th day of AUGUST, 1964, personally
appeared before me KATHERINE H. BROWN, who after
first being duly sworn, deposed and stated as follows:.
* * * * *
Ill J
That at some time prior to the ‘execution of the
papers by RUSSELL H. SITTON and wife, BARBARA
SITTON on September 7, 1962, MOORMAN called the
LNT ,
" A-37 :
a
Casa Linda office of American Title Company of Dallas,
and ordered the Deed from the SITTONS drawn so that
the SITTON crinveyance would be to W. R. TROUT.
* «x ‘x
IV
* * * She does not know of any person who could
have made any alterations in such Deed, since the Deed
was in her custody and possession from the date of
signing and notarizing such Deed until such Deed was
forwarded to the main office of American Title Compary
of Dallas to be forwarded; to the County Clerk to be
placed of record.” >. %
Testimony of Harry Clifton Summer, Jr.,
Direct Examination By Mr. Howell:
“Q. Now, after the Sittons signed all five copies of
this contract [Ps.’ Ex. I, A-25!—they did ‘sign that
morning, is that right? A. * * * they signed five copies,
yes. (Testimony 20) =
x * * * *
“Q. You kept all five copies, is that right, sir? A.
That’s right. (Testimony 20)
* *«+ SM & & ;
“Q. The selling agent is who? A. Mrs. Gardner. (Tes-
timony 21) |
* * * x .*
“Q. Is she going to be down here to testify? A. I don’t
_ know whether she is or not. (Testimony 21)
=
* * * * *
“Q.:The contract doesn’t say a word about the GI
loan at all, does it? A. It does not. (Testimony 27)
* * * * *
: “Q, And why didn’t you, Mr. Summer, write in the
contract here. that Mr. Moorman was or was not to
EE eM TE III LOLS ee aN
Deposition Testimony—Questions By Mr. Howell:
An 38
assume the mortgage? A. I have never written that in
contracts. (Testimony 28)
- go ete ee cae
“Q. It is your y Ree eeeee testimony that you never
put a provision in a contract spelling, out definitely <
whether or not the buyer is going to assume the out-
standing mortgage or take the house without assuming
the mortgage? A. In a trade we write’ the contract just
‘exactly like it is written. ~
“Q. Without providing or making any reference what-
ever to the fact one piece of property has got a mortgage
on it? A. That would come up later.
“Q, Let the chips fall where they may? A. That would — -
come up later in your negotiations. (Testimony 28, 29)
* * x * _
“A. We close practically all of our deals with Ameri-
can Title. * * * (Testimony 41)
yd
“A. The only discussigns that I had with Mrs, Brown * j
regarding this deal was at the time the Veterans Ad-
ministration man came to her office. (Testimony 441)
* * a * *
“A. She just notified me and told me that the Vet-
erans Administration man had been to her office in re-
gard to the Moorman and Sittons’ deal, that’s all.” (Tes-
timony 441)
Testimony of Mrs. Barbara Sitton.
[Concerning events taking place soon after petitioners
began receiving notices and demands on their G.I. loan] t
Direct Examination By Mr. Howell: :
“Q. And what did you do? A. I made some calls. »
“Q, And who.did you call? A. I first called Mr. Sum-
mer. (Testimony 191) COT a
Shenae’ places eran leat asad i wee ae sj
“Q. State the nature of your discussions with Mr.
‘Summer. A. Yes, sir, I told'Mr. Summer our GI loan
was in trouble, that I gave him the whole nature of it,
all the calls and letters and Mr. Summer told me there —
wasn't anything I could do about it, I had signed an
open deed. .
_“Q. Did you know what an open deed was? A. No,
sir,
“Q. Did you make any other telephone calls? A.
Yes, sir. : : ml ds ae
“Q. Who did you call? A. I called Mr. Moorman.
. (Testimony 191, 192)
oe ee Oe
“Q. What were your discussions with Mr. Moorman?
. Lobjection overruled] A. I asked Mr. Moorman did he
feel any. responsibility towards this loan and he said
that he did not. * * * (Testimony (192-193)
x * * * *
“Q. How did that “conversation with Mr. Moorman
end? A. Mr. Moorman told me I had signed: an open
deed and hung up on me, |
“Q. Did you have any further conversations? A. Yes,
I called Mrs. Brown about it.
“Q. And what did Mrs. Brown say? A. She said sign- _
ing an open deed was a common procedure of the title
a ok
company.
_“Q. And what did she say with respect to your deed? .
A. Shé said there wasn’t anything we could do about
any of this, . K =
“Q. Did she make any statement as to what kind of
a deed you had signed? A. I don’t think so, no. As I
recall, Mrs. Brown said that I signed an open deed.”
(Testimony 194)
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FREER E PRTE LET RTRC ORIN ONS OT ne a A REALE! OES,
rua :
Charge of the Court and Verdict of the Jury
[Note—numerous instructions and definitions are omitted ]
You are the exclusive judges of the facts proved, the truth-
fulness and credibility of the witnesses, and the spits to oa
given their testimony.
1. Do you find from a preponderance of the evidence that
the names of Walter J. Moorman and wife, Jeirenne Moor-
man, as Grantees were erased from the deed involved in this
case dated September 7, 1962, after it was signed by the
Plaintiffs, Russell Harold Sitton and wife, Barbara Sitton?
A. Yes roy
2. Do you find from a preponderance of the evidence that
such alteration, if any, of the Plaintiffs’ deed ‘was done pur-
suant to any conspiracy? A civil conspiracy is a combina-
_ tion or agreement of two or more persons, by concerted action
to accomplish an unlawful purpose, or to accomplish some
purpose not in itself unlawful by unlawful means. A. Yes
3. Find from a preponderance of the evidence which, if
any, of the following named persons, if any, were parties to
the conspiracy, if any, to alter the said deed (Plaintiffs’
Exhibit No. 3), if you have so found. q
KATHERINE H. BROWN Yes
HARRY CLIFTON SUMMER, JR. Yes
WALTER J. MOORMAN a
4. Do you find from a preponderance of the evidence that
at the time of the aforesaid conspiracy, if any, the Defendant
Katherine H. Brown was employed by the Defendant Ameri-
can Title Company in a managerial capacity? A. Yes
5. Do you find from a preponderance of the evidence that
in conspiring to alter the Plaintiffs’ deed (Plaintiffs’ Exhibit _
No. 3), if you have so found, the. defendant Katherine H.
Brown was acting within the course and scope of her em-
' A-42
ployment, if any, for Defendant American Title Sey
of Dallas? A. Yes
6. Do you find from a preponderance of the evidence that
at the time of the aforesaid conspiracy, if any, the Defendant
Harry Clifton Summer, Jr. was employed by the Pleasant
Grove office of the Leonard: Duckworth Agency in a mana-
gerial capacity? A. Yes |
7. Do you find from a preponderance of the evidence that
in conspiring to alter the Plaintiffs’ deed (Plaintiffs’ Exhibit
No. 3), if you have so found, the Defendant Harry Clifton
Summer, Jr. was acting within, the course and scope of his
employment, if any, for the Pleasant Grove office of Leonard
Duckworth Agency? A. Yes
8. Do you find from a preponderance of the evidence that
in conspiring to alter the Plaintiffs’ deed ( Plaintiffs’ Exhibit
No. 3), if you have so found, the Defendant Harry Clifton
Summer, Jr. was engaged in the conduct ot the real estate
business? A. Yes
9. Do you find from a preponderance of the evidence that
at the time of. the said conspiracy, if any, the Defandant
Lawyers Surety Corporation was acting as surety upon a
Real Estate Brokers Bond of the Defendant Harry Clifton
Summer, Jr.? A. Yes
10. Do you find from a preponderance of the evidence,
that at the time of the aforesaid conspiracy, if any,-the De-
fendant Leonard Cooksey Duckworth was engaged in the
conduct of the real estate business under the name of Leon-
ard Duckworth Agency? A. Yes.
11. Do you find from a preponderance of the evidence
that at the time of the said conspiracy, if any, the Defendant
Trinity Universal Insurance Company was acting as surety
upon a Real Estate Brokers Bond of the Defendant Leonard
ee Duckworth? A. Yes
A-43
12.. Do you find from a preponderance of the evidence
that the parties, if any, to the aforesaid conspiracy, if any,
in causing the alteration of Plaintiffs’ deed: (Plaintiffs’ Ex-
hibit No. 3), if you have so found, acted with reckless dit.
regard for the mental and physical health and welfare of :
the Plaintiff, Russell Harold Sitton? A. Yes °
‘13. Do you find from a preponderance of the evidence
_ that the aforesaid conspiracy, if any, to alter the Plaintiffs’
deed (Plaintiffs’ Exhibit No. 3), if you have so found, was
a proximate cause of any mental or emotional pain and phy-
sical illness of Russell Harold -Sitton occurring after July
1, 1963? A. Yes |
14. What sum of money, if any, if paid now in cash, do
you find from a preponderance of the evidence would fairly
and reasonably compensate Russell Harold Sitton for his
mental and ‘physical pain and suffering, if any, after J uly 1,
1963, resulting from the aforesaid conspiracy, if any, to alter
the Plaintiffs’ deed (Plaintiffs’ Exhibit No. 3), if you have
so found? A. $30,000
15. Do you find from a preponderance of the evidence
that the parties, if any, to the aforesaid conspiracy, if any,
in causing the alteration of the Plaintiffs’ deed (Plaintiff's
Exhibit No. 3), if you have so found, acted with reckless
disregard for the mental and physical health and welfare of
the Plaintiff, Mrs. Barbara Sitton? A. Yes
16. Do you find from a preponderance of the evidence
that the aforesaid conspiracy, if any, to alter the Plaintiffs’
deed (Plaintiffs’ Exhibit No. 3), if you have so found, was .
a proximate cause of any mental or emotional pain and
physical illness of Mrs. Barbara Sitton occurring after J uly |
.1, 1963? A. Yes
17. What sum of money, if any, if paid now in cash, do
you find from a preponderance of the evidence would fairly
and reasonably compensate Mrs. Barbara Sitton for her
A-44
mental and physical pain and suffering, if any, after July 1,
1963, resulting from the aforesaid conspiracy, if any, to alter
the Plaintiffs’ deed (Plaintiffs’ Exhibit No. 3), if you have
so found? A. $10, 000.00
21. Find from a preponderance of the evidence which, if
any, of the following named persons acted with malice in
conspiring to alter the Plaintiffs’ deed (Plaintiffs’ Exhibit
No. 3), if you have so found? The term “malice” means ill
will against a person, but in its legal sense means a wrongful
act, done intentionally, without just cause or excuse.
KATHERINE H. BROWN Yes
HARRY CLIFTON SUMMER, JR. Yes
WALTER J. MOORMAN Yes
22. What sum of money, if any, if paid now in cash, do
you find from a preponderance of the evidence should be
paid as exemplary damages (as that term is defined for you
in this charge), if any, by the following named parties?
AMERICAN TITLE COMPANY _ $20,000.00
_ KATHERINE H. BROWN. $ 3,500.00
23. What sum of money, if any, if paid now in cash, do
you find from a preponderance of the evidence should be
paid as exemplary damages (as that term is defined for you
in this charge), if any, by the following named parties.
HARRY CLIFTON SUMMER, JR. = $ 3,500.00
LEONARD COOKSEY Ke
DUCKWORTH $20,000.00
24. What sum of money, if any, if paid now in cash, do |
you find from a preponderance of the evidence should be.
paid as exemplary damages (as that term is defined for you
in this charge), if any, by Walter J. Moorman? A. $3,500.00
You are the sole judges of the facts proved; the credibility
of the witnesses\and of the weight and credit to be given to
their testimony, but the law you will receive from the court,
x”
ue Cer eee .
which is herein givén you and be governed thereby. (Plead-
ings 148-158)
Issues Requested by Plaintiff and Refused by Court |
18. Do you find from a preponderance of the evidence
that the parties, if any, to the aforesaid conspiracy, if any,
in causing the alteration of Plaintiffs’ deed (Plaintiffs’ Ex-
hibit No. 3), if you have so found, acted with reckless dis-
regard for Russell Harold Sitton’s G.I. loan obligation?
19. Do you find from a preponderance of the evidence
that the aforesaid conspirac , if any, to alter the Plaintiffs’
deed ( Plaintiffs¢,Exhibit No. 3), if you have so found, was
a proximate cavise of a foreclosure and resulting: mortgage
deficiency?
19A. What-sum of money, if any, do you find froma
preponderance of the evidence has the Plaintiff Russell
Harold Sitton been required to pay upon the aforesaid mort-
gage deficiency, if any, up to this date?
20. What sum of money, if any, do you-find from a pre-
ponderance of the evidence will the Plaintiff Russell Harold
Sitton be reasonably and probably required to pay upon the °*
aforesaid mortgage deficiency, if gery, in the future? (Plead-
ings 213-214, 228)
Final Judgment
On the 16th day of November, 1964, there came on to be
heard before the Court pursuant to notice the above num-
bered and entitled cause wherein RUSSELL H. SITTON
and his wife BARBARA J. SITTON are plaintiffs and
AMERICAN TITLE COMPANY OF DALLAS, a corpora-
tion, KATHERINE: H. BROWN, JARVIS L. BROWN,
LEONARD COOKSEY DUCKWORTH, doing business as
LEONARD DUCKWORTH AGENCY, TRINITY UNI-'
VERSAL INSURANCE COMPANY, a corporation,
HARRY CLIFTON SUMMER, JR., LAWYERS SURETY
’
Peer Te eT Ty Rae Pe ee acs
a m il
”. AH46
CORPORATION and MR.» AND MRS. WALTER J.
MOORMAN are each of them defendants. Came the parties
except LEONARD COOKSEY DUCKWORTH in person
and came each of the parties hereto by their attorneys. And
the plaintiffs having filed their Second Amended Original
Petition and the parties having announced ready, this cause
came on for trial before a jury duly selected, sworn and
empanelled. And the plaintiffs, having adduced their evi-
dence and having duly rested, and| the said defendants and
each of them having dictated and filed their respective
motions for a directed or instructed verdict and the Court
having heard and considered the same outside the presence
- of the jury, the said motions were each overruled, to which
shid defendants each duly excepted. And the defendants
having each duly adduced their evidence and having duly
rested and the jury having been charged in accordance with
the law, came the jury on the 20th day of November, 1964
and returned its SPECIAL ISSUE VERDICT into open
Court which reads as follows, to-wit:
[Verdict Omitted—See Above]
The said SPECIAL ISSUE VERDICT being duly endorsed;
WE, THE JURY, HAVE ANSWERED THE ABOVE
AND FOREGOIN’ QUESTIONS AS IS HEREIN INDI-
CATED AND HEREWITH RETURN SAME INTO
COURT AS OUR VERDICT.
And the said Special Issue Verdict, having been examined
by the Court and having been found to be the unanimous
verdict of the jury, was ordered received and filed in this
cause.
And the Plaintiffs having filed their motion for judgment
and the defendants having each filed their respective motions
a
~
A-47
for judgment non obstante veredicto and the Court having
on the 14th day of January, 1965 heard and considered
each of the said motions and having reconsidered the motions
for directed or instructed verdict aforesaid and having
examined the pleadings and the verdict of the jury and hav-
ing heard the argument of the parties is of the opinion that
tha _ ant af AnfanAnntn in a revanine +n alénw ana in albawina
CMe ALY Vi UCiCitGGaiius 1k C64 ev aittsa GIG 4 Alveasi
$e laiwti fn? Anand nbtaw 3+ wenn ntemnd er tha nloninsiff,.
Wie pias accu aiver—it Was Signa 0) ule piainiciirs
J.C.H./s/-RUSSELE-HA IT TON
T
AEWA AASB WAL AWAY GI BITC
* . * .
soessen fen Seewstn and—being
. Gf-the-opinion- [sic] that defendants are entitled to judg-
ment as a matter of law; now, WHEREFORE, premises con-
sidered, IT IS ORDERED, ADJUDGED and DECREED
_ that the Defendants AMERICAN TITLE COMPANY OF
DALLAS, a corporation, KATHERINE H. BROWN, JAR-
VIS L. BROWN, LEONARD COOKSEY DUCKWORTH,
doing business as LEONARD DUCKWORTH AGENCY,
TRINITY UNIVERSAL INSURANCE COMPANY, a
corporation, HARRY CLIFTON SUMMER, JR., LAW-
YERS SURETY CORPORATION and MR. AND MRS.
WALTER J. MOORMAN have and*recover judgment non
obstante veredicto and that the Plaintiffs RUSSELL H.
SITTON and wife, BARBARA J. SITTON take nothing
of these defendants by their suit and that all costs incurred
herein be taxed against the plaintiffs.
IT IS FURTHER ORDERED that this judgment is final
and all relief not specifically allowed herein or heretofore,
is hereby denied.
To which order and judgment of the Court the plaintiffs
RUSSELL H. SITTON AND BARBARA J. SITTON duly
excepted and in open court gave notice of appeal to the Court
of Civil Appeals for the §th Supreme Judicial District of
Texas sitting at Dallas, Texas.
SIGNED this 21 day of January, 1965. (Pleadings 218-
227)
Bite Li RONS I REE Masts nL Se:
A-48
PROCEEDINGS IN THE COURT OF CIVIL APPEALS
Appellants’ Points of Error
(filed August 25, 1965)
Point One: The Trial Court erred in holding that there
was no evidence to support the jury’s finding that plaintiffs’
deed was altered after the execution thereof.
Point Two: None of the appellees had any right to per-
form, or agree to perform, the criminal act of altering plain-
tiffs’ deed after the execution thereof. The Trial Court erred
in denying judgment for personal injuries and for foreclosure
deficiencies paid and for foreclosure deficiencies payable and
for exemplary damages, or for nominal damages and costs,
or for any damages whatsoever, on grounds that the altera-
tion after execution did not infringe any legally protected
right of the appellants. |
Point Three: The Trial Court erred in holding that plain-
tiffs’ cause of action is within the statute of frauds.
Point Four: The’Trial Court erred in holding that there
was no evidence to support any of the jury’s findings that
plaintiffs’ deed was altered as the result of a conspiracy
between appellees Summer, Brown and Moorman, or any
of them. :
Point Five: The Trial Court erred in holding that as a
matter of law the conduct of appellees Summer, Brown, and
Moorman (or any of them) in agreeing to alter the plain-
tiffs’ deed after its execution did not constitute a conspiracy.
Point Six: The Trial Court erred in holding that the
plaintiffs’ deed was drawn or altered (or both) by an inde-
pendent practicing attorney. On the contrary, the acts of
the attorney involved and the alleged secretary for the said
attorney were the acts of the defendant title company as a
matter of law.
Point Seven: The Trial Court erred in holding that the
law of proximate cause was applicable to appellants’ causes
of action for personal injuries and for foreclosure deficiencies
A-49
paid and for foreclosure deficiencies payable and for exem-
plary damages or to appellants’ causes of action for any of
the said damages,
Point Eight: Alternatively, the Trial Court erred in hold-
ing that there was no evidence from which the jury could
conclude that the conduct of the defendants in altering and
agreeing to alter plaintiffs’ deed after the execution thereof
was a proximate cause of appellants’ personal injuries or of
the foreclosure deficiencies paid or of the foreclosure deficien-
cies payable or of any of the said damages.
Point Nine: The Trial Court erred in holding that there
was no evidence to support any of the jury’s findings to the
effect that appellee Summer, Brown and Moorman (or any
of them) acted with malice. |
Point Ten: Appellants are further entitled to recover ex-
emplary damages because they were injured by the unlawful
conduct of appellee title company and its alter ega, appellee
Brown, engaging in the unauthorized practice of law; Article
9.01 of the Insurance Code being unconstitutional and void
insofar as it provides that title companies may supervise
signing of legal instruments, deliver instruments and close
deals.
Point Eleven: [Amended] The Trial Court erred in re-
fusing appellants’ requested issues 18, 19, 19-A, and 20 regard-
ing the foreclosure deficiency and in refusing Barbara Sit-
ton’s testimony with respect to payments thereon.
Point Twelve: [ Amended] Alternatively, the amount of
the foreclosure deficiency is reasonably fixed and uncontro-
verted and the payments made thereon by appellants is also
uncontroverted. The Trial Court erred in failing to render
judgment for foreclosure deficiencies paid and payable and
this Court should enter judgment therefor to avoid the bur-
dens of time and expense involved in a remand.
Point Thirteen: The act of the Trial Court in rendering
judgment non obstante veredicto on grounds other than those
cheng eee
i tee oe
A-50
specifically set forth in written motions filed with the Court
and served upon appellants was contrary to the laws of pro-
cedure and constituted denial of due process of law and equal
protection of the law under Article One, Sections Fifteen
and Nineteen of the Texas Constitution and Amendments
Seven and Fourteen of the United States Constitution. :
Point Fourteen: Inasmuch as there is evidence of proba-
tive force to support the jury verdict, it would have con-
stituted denial of due process of law and equal protection
of law under Article One, Sections Fifteen and Nineteen of
the Texas Constitution and Amendments Seven and Four-
teen of the United States Constitution for the Trial Court
to have rendered judgment non obstante veredicto on the
grounds of “No Evidence.”
{Note—Under points 13 and 14, argued together, the
appellants incorporated 24 pages of fact statement by refer-
ence and presented six pages of argument containing four-
teen citations of authority. ]
(Appellants’ Amended and Supplemental Original Brief
3-6; Appellants’ Brief Amending Point of Error Number
Eleven 2; Appellants’ Brief Amending Point of Error Num-
ber Twelve 2)
Opinion of the Court
The appellants Russell H. Sitton and wife brought this
suit for actual and exemplary damages~alleging that they
were the victims of an unlawful conspiracy between the de-
fendants by which they both suffered extensive emotionally
induced physical injuries, including the recurrence to Mr.
Sitton of a childhood speech impediment; it being also
alleged that among other ill effects Mrs. Sitton on one occa-
sion became so emotionally overwrought by the situation
that she fell from a moving automobile and sustairied serious .
injuries. The defendants; who are the appellees here, were
American Title Company-of Dallas, Katherine H. Brown
and husband, Jarvis-L. Brown (Mrs. Brown being alleged
A-51
to have been a notary public and manager, vice-president
and alter ego of American Title Company), the American
Insurance Compan , alleged to have been the surety on the
bond given by Mrs. Brown as a notary public; Leonard Cook-
sey Duckworth, a licensed real estate broker trading as
Leonard Duckworth Agency; Trinity Universal Insurance
Company, surety on Duckworth’s bond as real estate broker;
Harry Clifton Summer, J r., a licensed real estate broker and
vice-president of Duckworth Agency; Lawyers Surety Corpo-
ration, Surety on Summer’s bond as real estate broker; and
Mr. and Mrs. Walter J. Moorman.
The appellants alleged that they agreed to exchange their
home at 331 Andover Drive in Mesquite, Texas, on which
was a mortgage securing a first lien note in favor, of: T. J.
Bettes Company, insured sand guaranteed by: the ¥. terans
Administration, for a home owned by Walter ‘J. igorman;
that the transaction was handled by Summer as sales mana-
ger of the Duckworth Agency; that pursuant to arrange-
ments made by that agency appellants went to the offices
of American Title Company of Dallas, met with its vice-
president, Katherine Brown, and executed a deed conveying
their home to Moorman, leaving the deed with Mrs. Brown
for further handling; that this deed provided that as part
foreclosed, resulting in a substantial deficiency which they .
were called upon by the Veterans Admini tration and T. J.
Bettes Company to pay; that they, being of limited educa-
tion, became very frightened and emotionally upset over
_ these developments, the loss of Mr. Sitton’s veteran’s benefits
and the numerous demands by mail and telephone that the ©
deficiency be paid, all of which resulted in the physical in-
ity Rare
2 peer EN Ole iO sR To He
A-S2
juries which, together with the deficiency they were called
upon to pay, were made the basis of their claim for damages.
- The court sustained American Insurance Company’s mo-
tion for summary judgment and this was affirmed in Sitton
v. American Ins. Co., 390 S.W. 2d 34.
The case was submitted to the jury on numerous special
issues, all of which were answéred favorably to appellants,
after which the court rendered judgment non obstante vere-
dicto that appellants take nothing. In appealing to this court
they assign fourteen points of error.
The appellee Moorman has filed a motion to strike and
disregard all of appellants’ points of error as being multi-
farious, too general and insufficient under Rule 418, Vernon’s
T.R.C.P. While this motion points up numerous inadequa-
cies and defects in appellants’ points of error, after reading
the statements and arguments thereunder, we are of the
opinion that the points do inform the court and opposing
counsel of the contentions made by appellants. The motion
is therefore overruled. Fambrough v. Wagley, 140 Tex. 577,
169 S.W. 2d 478; Rule 422, T.R.C.P.
Facts
Appellants pitch their case entirely on their contention
that all of the appellees (except the sureties on the notary’s
and real estate brokers’ bonds) conspired to effect the altera-
tion of their deed, after they had signed it, in order to de-
prive them of a valuable right, viz., the assumption by Moor-
_ man of the balance owing on their mortgage indebtedness,
to their great loss and damage because, while Moorman was
a man of financial means and would have paid the debt, the
substitute grantee, Trout, was of such poor financial worth
that he did not pay the debt and could not be compelled
to do so.
The contract of exchange, signed by Moorman and the
appellants, was dated July 14, 1962 and provided that Moor- —
man and wife.sold and agreed to convey unto appellants
Sy eo seas aR Ba a.
_ — Ls
©
a a
: x
A--53
their property known as 2219 Pleasant Drive, Dallas, Texas
for a purchase price of $11,500, and that the Moormans
would take in trade appellants’ home located at 331 Andover
Drive, Mesquite, Texas, allowing them credit “for all down
payment and closing costs in amount not to exceed $700.00.”
- This contract did not specify the balance owing by appellants
on their property, and it did not provide that Moorman
would assume or agree to pay any such balance. This ex-
change of properties was arranged for by the appellee Sum-
mer and another employee of the Duckworth Agency. Ap-
pellants testified that they were assured by these two em- :
ployees and Mrs. Brown that Moorman would assume the
debt.
Appellants went to the American Title Company’s branch
office, where they met with the appellee Mrs. Brown, vice-
president and manager of the branch office of the title com-
places where they appeared in the deed and the names W. R.
Trout and wife, Joanne Trout, substituted therefor. There ©
is some dispute in the testimony as to whether this erasure
and alteration were made prior or subsequent to the signa-
tures by appellants to the deed, but the jury found, and for
the purposes of this opinion we shall assume, that it was
done subsequently. Moorman called someone at the office
of the title company and requested that the names of W. R.
Trout and his wife be inserted as the grantees in the dead
in lieu of his and his wife’s names. Trout was an employee
of Moorman’s plumbing company. This substitution was
made by someone in the office of the title company. Trout
A-54
failed to pay the installment due on appellants’ note on
‘ May 1, 1963 and appellants thereafter, beginning in June
1963, began receiving letters from the Veterans Administra-
tion demanding payment, threatening foreclosure and telling
appellants that unless they made satisfactory arrangements
for: curing the default they would lose their property and
_their credit standing in the community would be seriously
affected and, in addition, that if the property should sell at
foreclosure sale for less than the debt, they might become
indebted to the United States Government for the deficiency.
The property was foreclosed on in February 1964, and the
Veterans Administration notified appellant Sitton by letter
dated June 5, 1964 that he owed an indebtedness of $524.95
plus 4% interest because of the foreclosure on the property.
This letter also contained this statement:
“You may request a waiver of this debt if you feel
this obligation arose out of compelling reason without
fault on your part, and collection of the indebtedness
would work a severe hardship on you or your family.”
Sitton did not reply to that letter, and about six weeks later
received another letter from the Veterans Administration
dated July 20, 1964, remarking that no reply had been re-
ceived to its former letter and that the debt “must be paid,”
arid stating that:
“Government regulations se a definite limit upon
the time during which the Veterans Administration may
handle the collection of debts before the matter is re-
ferred to the General. Accounting Office for action, in-
cluding referral to the Department of Justice, if re-
quired.”
These and other communications from the Veterans Adminis-
tration and T. J. Bettes Company caused the great emotional |
upheaval which appellants say caused the physical impair-
ments which form the basis of their demand for damages in
this case. Mrs. Sitton first learned of the foreclosure about
April 1, 1964, and when she told her husband of it she be-
came “terribly upset” and fell out: of the car door and sus-
Cl
A-55 | =
tained rather serious injuries necessitating heavy medical
expenses, ,
Opinion
our attention is directed to none, that any of the appellees
oosbired with any of the others to do any act having the
the theory of ‘Conspiracy, and no conspiracy is shown to
exist in the absence of proof that two or more persons have
fact Moorman made any such enforceable agreement, all we
find to that effect is the testimony of one McMaster, a loan
A-56
of the fact as against Moorman, it was clearly hearsay as to
the other alleged conspirators.
_ There is no direct evidence, as distinguished from the
foregoing evidence of admissions against interest, that Moor-
man ever agreed to pay or assume the debt, or that he ever
accepted a deed reciting any such obligation on his part.
_Appellants argue that Mrs. Brown, who was present when
they signed the deed, accepted it as Moorman’s agent. How-
ever, we find no evidence that Moorman ever authorized Mrs.
Brown to act as his agent in that respect, or that he ratified
anything she did purporting to act as his agent. In fact, we
find no evidence that Moorman ever knew that the deed
contained the provision for assumption of the debt by the
grantee named therein. The substitution of Trout’s name for
his as grantee was done at his request while the deed was
still in possession of the title company and before it had
been delivered to anyone. Moreover, neither we nor the ap-
pellants have a right to assume that if Moorman’s name had ©
remained as grantee in the deed he would have accepted it.
The written contract of exchange did not obligate him to
- do so, and appellants make no effort in this suit to enforce
any such obligation. Their suit is strictly one in tort for
- damages.
-Appellees contend that even if there had been a conspiracy
between them to do the wrongful act of which they are
accused, the emotional disturbances and resulting injuries
could not have been anticipated or foreseen by them and
are therefore too remote to form the basis of a recovery
against them. In reply appellants say that, since this is not
a negligence case, it was not necessary for them to prove
proximate cause. They contend that this case is similar to,
and should be governed by the principles of law announced
in, cases like Thompson v. Hodges, Tex. Civ. App., 237 S.W.
2d 757, wr. ref. nr.e., Where the plaintiff, a railroad worker,
was assaulted by his yard master; and Eastern Texas Elec-
tric Co. v. Baker, Tex. Civ. App., 238 S.W. 335, reversed
A-57
on other grounds 254 S.W. 933, where a colored passenger
in a streetcar was kicked by the conductor in a ruction over
seating arrangements. It was held in those and other cases
that proximate cause is not an issue where the injury or
damage is inflicted willfully or intentionally, for in. such a
case the actor is presumed to have intended the conse- ~
quences. 40 Tex. Jur. 2d, NEGLIGENCE, § 17, p. 468.
The rule is well stated as follows in 25 C.J.S., DAMAGES,
§ 25b, p. 489: |
“In the case of willful torts the wrongdoer is responsi-
ble for the direct and immediate consequences regard-
less of whether they might have been contemplated,
. foreseen, or expected. Where the act is criminal or
unlawful, the wrongdoer is held liable not only for im-
mediate and natural consequences but for all such ¢on-
sequential injuries as might reasonably be anticipated
as the possible resul of the wrongful act.” [Italics
by the Court] : ices or Le
But that is not to say that the perpetrator of a willful, wrong-
ful, or even criminal act is liable in damages for every harm,
no matter how remote, that might be related to the act
complained of. A defendant in such a case cannot be held
responsible for remote consequential injuries that could not ~
have been reasonably anticipated as a probable result of |
his act.
Appellants cite a number of cases, beginning with Hill v.
Kimball, 76 Tex. 210, 13 S.W. 59, to establish the now well
settled rule that recovery may be had for fright, accompanied
by physical injury, caused by the defendant’s deliberate or
negligent act; but in each of those cases it was also held that
the complainant was under the necessity of showing that
the defendant’s act was a proximate cause of the fright and
injury and that the injury ought, in the light of all the cir-
/umstances, to have been foreseen as a natural and probable
consequence thereof. One of the cases relied on by appellants
is St. Louis & S.W. Ry. Co. of Texas v. Thompson, 102 Tex.
ee ee a
~~ wel
A-58
89, 113 S.W. 144, wherein Thompson sued several defendants
as conspirators to recover damages, alleging they wrongfully
and maliciously caused him to be expelled from his union, and
wherein the Supreme Court held that if he could prove his
expulsion was wrongful he would be entitled to recover
against the conspirators “all damages which naturally flowed
from such expulsion.”
Appellants became interested in Moorman’s house at 2219
Pleasant Drive in the summer of 1962 and the exchange
was effected in September 1962. Apparently Trout paid the
installments due on the Sittons’ mortgage for several months,
for the record is clear that the installments due each month
until May 1, 1963 were paid. The letters which so upset the
Sittons didn’t start coming to them until some time in June
1963, after which four notices of foreclosure sales were posted
to take place in October, November and December, 1963,
with the foreclosure actually occurring in February 1964, At
no time did appellants accept the Veterans Administration’s
invitation to request a waiver of the debt on the ground
that the obligation for the deficiency arose without fault on
their part and that its collection would work a severe hard-
ship on them. Under these circumstances, can the appellants’
injuries properly be said to have “naturally flowed” from
the alteration of the deed? Were they “directly or immediate-
ly caused by the wrongful act”? We think each of these
questions must be answered in the negative.
Appellants’ Points of Error Nos. 1, 2, 3, 5, 6, 7, 8 and 9
assert error of the trial court in making certain “holdings”
in the rendition of the judgment. We find no such “holdings”.
in the transcript; the judgment merely recites that the court
is of the opinion that the defendants are entitled to judgment
as a matter of law. It is our view that the evidence admits
of no judgment other than that rendered, and that it must
therefore be affirmed, regardless of the grounds or reasons
thé trial court may have thought controlling. 4 Tex. Jur.
2 ee A ae ar F
° f
;
A-59
2d, APPEAL and ERROR—CIVIL, p. 437, § 861; Fant v.
Sullivan, Tex. Civ. App., 152 S.W. 515,. 522, wr. ref.
The first nine points of error are overruled.
Their tenth point does not comply with Rule 418(b),
T.R.C.P., in that it fails to direct our attention to any error
By their Points of Error Nos. 11 and 12 appellants com-
plain (11) of the refusal of the trial court to submit their
requested Special Issues 18, 19, 19-A and 20 inquiring as to
spiracy to establish any liability against appellees, and this
court having held that there was no evidence of a i |
to alter the deed in question, or of alteration of the deed as
a result of conspiracy, it follows that there was no reversible
pene meses a 5
A-60
error in rejecting either the special issues or the testimony,
or in failing to render judgment for appellants for the fore-
closure deficiency. Points 11 and 12 are overruled.
Like their tenth point, appellants’ Points of Error 13 and
14 fail to complain of any specific error of the trial court.
They merely assert that the judgment non obstante vere-
dicto, having been rendered on grounds other than those
specified in the motions therefor, and in the face of evidence
of probative force supporting the verdict, was contrary to
the laws of procedure and denied appellants due process and
the equal protection of law guaranteed to them by Article 1,
§§ 15 and 19, of the Texas Constitution and the Seventh and
Fourteenth Amendments to the United States Constitution.
The argument under these points does no more than trace
the evolution of the jury system from its nebulous origins
in the hazy mists of antiquity, extol its many virtues and
accuse the trial court generally of substituting its fact de-
termination for that of the jury. Our attention is directed to
no specific evidence supporting any part of the verdict; nor
is it demonstrated how appellants’ said constitutional rights
were violated. Our examination of, the record discloses to
us no such evidence and no such violation. Therefore, we
say again that the motions for directed verdict should have ,
been sustained and that the judgment n.o.v. was correct. *
Rule 301, T.R.C.P.; Bolin v. Pacific. Finance Co., Tex. Civ.
App., 278 S.W. 2d 879, no wr. hist. Points 13 and 14 are
overruled.
All of the appellees except Lawyers Surety Corporation
have filed numerous cross points which are entitled to, and
have received, our careful attention. However, being of the
opinion that a recitation of the testimony, special issues and
jury argument complained of, together with a full discussion
of our views thereon, would add nothing to an understanding
of this case or be of “importance to the jurisprudence of the
State,” Rule 452, T.R.C.P., we merely indicate below our
decision on each of these cross points. ..
a)
: = el
—_ : Hs
. aS
A-61
Cross points of appellees American Title Company of
Dallas, Katherine and Jarvis Brown: |
Nos. 1, 6, 7, 8 and 9 are overruled.
Nos. 2, 3, 4 and 5 are sustained.
No. 10, being submitted conditionally on reversal, is not
considered. ;
Cross points of appellees Duckworth, Summer and Trinity
Universal Insurance Company:
Nos. 1, 2, 3, 4, 5, 6, 7 and 8 are overruled.
Nos. 9 and 10, being submitted conditionally on reversal,
are not considered. | |
Cross points of appellee Moorman: |
Nos. 1, 2, 3, 4,7 and 10 are overruled. i
Nos. 5, 6, 8 and 9 are sustained. 2
As we read this record, the trial court gave appellants
every reasonable opportunity to make out a case against
the appellees. We agree with the trial court that they failed
to do so. The judgment is therefore AFFIRMED.
DELIVERED: October 29, 1965 (396. S.W. 2d 899-906)
American Cross-Points 2, 3, 4, 5 & 10
(Filed September 21, 1965) | ;
Two The trial court improperly submitted Special Issues s
No. 1, and No. 2 in that these issues were not raised by the pou
evidence and were submitted in an improper order and in
that Special Issue No. 2 was duplicitous. oe
- Three The court erred in submitting Special Issue No. 3," °
4, and 5, for the reason that there was no evidence to war-
rant the submission of such issues. . .
Four It was error to submit Special Issues No. 4 and No..
5 for no evidence having been offered ‘on the question of con-
Boa ton RS dre
A-62
spiracy, inquires as to Katherine Brown’s status were not
relevant to any issues raised. . ,
Five The Court erred in submitting Special Issues Nos. 12,
13, 14, 15, 16, 17, 21, 22, and 24.
Ten The damage issues as answered by the jury were
grossly excessive and should the Court reverse and render, it
should order remittitur. (Brief for American, et al., 47-49)
Duckworth Cross-Points 9 & 10
(Filed September 24, 1965)
Nine ‘The excessive award of damages and the verdict of
the jury reflects the passion and préjudice which prevented
the jury from considering the issues on their merits. For this
reason, should this court find that the trial court erred in
entering judgment non obstante veredicto this court should
remand this cause to the trial court for new trial.
Ten In the alternative, should this court find that the.
trial court erred in entering a judgment for the Appellees
non obstante veredictd, it should order a remittitur of the
‘ excessive damages awarded by the verdict of the jury. {Orig-
inal Brief of Duckworth, et al. 8)
Moorman Cross-Points 5, 6, 8 & 9
: (Filed September 29, 1965)
Five The trial court erred ‘in the submission of special
issue number twelve to the jury for the reasons that there
was no evidence of probative force to support the submis-
sion of said issue, and as submitted it constituted a comment
on the weight of the evidence and further contained a phrase
improperly defined by the court. !
Six The trial court erred in its submission of special issues
numbered 13, 14, 15, 16, and 17 for the reason that there was
no competent evidence of probative force to support the sub-
mission of said issues. |
Eight The trial court erred in its submission of special issue
number 21, for the reason that there was no competent evi-
A-63
dence of probative force ‘to support the submission of said
issue. |
Nine The trial: court erred in its submission of special is-
sue number 24 for the reason that there was no competent
evidence of probative force to support the submission of said
issue. (Brief of Moorman, 10-11)
PROCEEDINGS IN THE SUPREME COURT OF TEXAS
Application for Writ of Error
(Filed Ct. Civ. App., January 3, 1966, Su
P y 8 idea Preme Ct. Tex.,
Order
March 9, 1966 Application of petitioners for writ of error
to the Court of Civil Appeals for the Fifth Supreme Judicial
District having been duly considered, and the Court having
determined that the application presents no erorr requiring
reversal of the judgment of the Court of Civil Appeals, it is
ordered that: said application be, and hereby is, refused.
It is further ordered that applicants, Russell H. Sitton
and wife, Barbara J. Sitton pay all costs incurred on this
application. | (Transcript, Supreme Ct. of Tex.)
CONSTITUTIONAL PROVISIONS, STATUTES
: AND RULES
The United States Constitution, Article III,
~Section 2. The judicial Power shall extend * * *
to Controversies to which the United States shall be
a Party; *.* *
The United States Constitution, Amendment Seven. In
Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than accord-
ing to the rules of the common law.
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A-64
2
The United States Conssivition, Amendment Fourteen,
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or prop-
erty, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
28 U.S.C., $ 1254. Cases inthe courts of appeals
may be reviewed by the Supreme Court by the follow-
ing methods:(1) By writ of certiorari granted upon
a petition of any party to any civil or criminal
case, before or after rendition of judgment or decree;
38 U.S.C., § 1803(c)(1) (With Amendments to Septem- —
‘ber 13, 1960--Date of Russell Sitton Loan) Loans
‘guaranteed-or insured under this chapter shall be payable
upon such terms and conditions as may be agreed upon by,
the parties thereto, subject to the provisions of this
chapter and regulations of the Administrator issued :
pursuant to this chapter, and shall bear interest’ not
in excess of such rate as the Administrator with the
approval of the Secretary of the Treasury, may from
time to time find the loan market demands except
that such rate shall in no event exceed 5¢ per centum
per annum.
38 U.S.C., § 1820(a)(4). Notwithstanding the provisions
of any other law, with respect to matters arising by reason of
this chapter, the Administrator may— \
(4) pay, compromise, waive or release any right, ‘title,
claim, lien or demand, however acquired, including any
equity or any right of redemption; and the authority to waive
or release claims may include partial or total waiver of pay-
ment by the veteran, or his spouse, following default and
loss of the property where the Administrator determines
that the default arose out of compelling reasons without
fault on the part of the veteran or that collection of the
indebtedness would otherwise work a severe hardship upon
the veteran.
A-65
Texas: Constitution, Article I, Sec. 15. The right of trial
by jury shall remain inviola The Legislature shall pass -
such laws as may be needed regulate the same, and to
maintain its purity and efficiency. * * * :
Rule 290, Tex. Rules Civ. Proc. * * * A special verdict
shall, as between the parties, be conclusive as to the facts
found. :
Rule 291, Tex. Rules Civ. Proc. No special form of verdict
is required, and the judgment shall not be arres or
reversed for mere want of form therein if there has
substantial compliance with the requirments of the law in
Tendering a verdict. No verdict shall be rendered in any cause
except upon the concurrence of all members of the jury trying
the case.
i
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.