Vordenbaum v. Ackermann

393 S.W.2d 927

• Court: Court of Appeals of Texas
• Decided: September 8, 1965
• Docket: 14392
• Status: Published

Opinions

MURRAY, Chief Justice.

This suit was instituted by Ernestine Vordenbaum on July 12, 1960, against Milton O. Ackermann and wife, Emelie Acker-mann, in the form of a trespass to try title action, and in the alternative to set aside a deed executed by her to the defendants, conveying a certain tract of land located in Schertz, Guadalupe County, Texas, and fully described in her petition. The trial court sustained defendants’ motion to strike plaintiff’s second amended original petition and dismissed the cause, from which judgment of dismissal plaintiff has prosecuted this appeal.

Plaintiff had filed her original petition and her first amended original petition. Thereafter on May 13, 1964, Wilbur Paul Vordenbaum, describing himself as “temporary guardian and grandson and next of kin of Ernestine Vordenbaum,” filed a second amended original petition, alleging, among other things, that “Ernestine Vor-denbaum is now a patient of and confined to the San Antonio State Hospital and is a person of unsound mind,” and praying that he be authorized to prosecute this suit as her guardian, pursuant to the provisions of Rule 44, Texas Rules of Civil Procedure.

On May 20, 1964, the defendants filed their motion to strike this second amended original petition because it did not comply with the provisions of Rules 46 and 49, T.R. C.P., relating, among other things, to original and supplemental petitions, and asked that plaintiff be required to replead.

On December 14, 1964, the trial court signed an order reciting that “On the 21st day of May, 1964, came on to be heard the motion filed herein by the defendants” to strike plaintiff’s second amended original petition, and ordering and adjudging that the motion to strike, be sustained. There is nothing in this order with reference to a repleader. The court said: “and it appearing on this date, December 14, 1964, that plaintiff desires to stand on his pleadings and not to replead the same after having had a reasonable opportunity to do so, it is further Ordered that this cause be and the same is hereby dismissed, * *

Counsel for plaintiff admits that he was present on May 21, 1964, when the motion to strike was presented to the court and argued, but he never heard any ruling made on the motion, and was under the impression that the court adjourned without making any ruling upon the motion. It appears that there is no docket entry, or anything of record, indicating that the order to strike was made, until the order was entered on December 14, 1964, containing the orders granting the motion to strike and the motion to dismiss the cause, both in one instrument. Neither order says anything about a repleader having been ordered. The second order merely recites that “plaintiff desires to stand on his pleadings and not to replead * * We can hardly deduce from all of this that plaintiff had been ordered to re-plead and had failed to do so.

Under the provisions of Rule 65, T.R.C.P., when plaintiff’s second amended original petition was stricken, such action had the effect of restoring as a live pleading plaintiff’s first amended original petition, which was a sufficient pleading, unless exceptions should be sustained to it, and in that event the plaintiff’s original petition would be restored as a live pleading, on which he would have a right to go to trial unless this pleading was also stricken. Plaintiff’s second amended original petition was filed by a temporary guardian on behalf of an elderly lady, alleged to be of unsound mind and confined in an institution. Plaintiff contends he had no notice that he had been ordered to replead. The only thing of record relating to a repleader by plaintiff is the orders entered on December 14, 1964, which do not show that plaintiff had been ordered to replead, they only show he did not wish to replead. The striking of the second amended original petition had the effect of reviving and making the first amended original petition a live pleading, in full force and effect. Under all of these circumstances, the trial court erred in dismissing plaintiff’s cause of action. Shaw v. Universal Life & Accident Ins. Co., Tex.Civ.App., 123 S.W.2d 738. Such action was more drastic tha-n sustaining a general demurrer to plaintiff’s pleadings. The general demurrer practice is prohibited by the provisions of Rule 90, T.R.C.P.

This brings us to a consideration of appellant’s contention that the trial court erred in overruling and not sustaining his motion for a summary judgment in his favor. It is true that ordinarily an order denying a summary judgment is an interlocutory order from which no appeal lies, but where the entire cause has been disposed of by a judgment of dismissal, a final judgment, from which an appeal does lie, the appellant will be heard to contend that the court erred in not granting his motion for a summary judgment, if he brings the matter properly before the appellate court. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.

The matter is brought before this Court by a supplemental transcript and a so-called “Bill of Exception No. 1.” The trial court ordered Bill of Exception No. 1 filed as a part of the record, but at the same time refused to approve it because the order appealed from “is interlocutory in its nature and as an order overruling a motion for summary judgment, it is not appealable; if held appealable, the exception herein presented is not timely and therefore not allowed.”

It is plain that the only reason why the trial judge did not approve the bill was that he thought plaintiff was attempting to appeal from an interlocutory order. We feel that in view of the provisions of Rules 372 and 373, T.R.C.P., we should give effect to this bill of exception. It contains principally written documents shown by the supplemental transcript to be on file in the district clerk’s office.

The record shows that on December 7, 1951, Ernestine Vordenbaum executed a warranty deed to Milton O. Ackermann and wife Emelie Ackermann, to her home in Schertz, Guadalupe County, Texas, based upon a contractual consideration. This deed contained a vendor’s lien clause and further set forth her remedy in case of default in the following language: “Providing that vendor if there be any default in any of the obligations above set out may foreclose the lien herein expressed as provided by law at her option.” This deed cannot be regarded as an executory contract but must be regarded as an executed contract. Duke v. Garrett, Tex.Civ.App., 276 S.W.2d 587.

This record does not conclusively show as a matter of law that this fully executed deed was rescinded by the parties thereto. If the record is sufficient to raise a fact issue as to rescission, it could not be disposed of in a summary judgment proceeding. Therefore, the trial court did not err in denying plaintiff’s motion for a summary judgment.

For the error above pointed out, the judgment of the trial court dismissing this cause is reversed and the cause remanded.