Opinion
No. 6228.
May 23, 1923.
Error from District Court, Travis County; D. J. Pickle.
Action by Henry Ziller against S. J. Von Koenneritz. Judgment for defendant, and plaintiff brings error. Reversed and remanded for a new trial.
Fred C. Von Rosenberg, of Austin, for plaintiff in error.
Geo. S. Dowell and Robert E. Cofer, both of Austin, for defendant in error.
Henry Ziller brought this suit against S. J. Von Koenneritz, alleging that they were coexecutors of the will and estate of Henrietta Blau, deceased, and seeking to recover certain commissions alleged to be due to the plaintiff as an executor of the estate. The trial court sustained certain special exceptions, which reduced the plaintiff's claim to less than $200, and therefore the case was dismissed for want of jurisdiction, and the plaintiff prosecuted a writ of error to this court. The main question involved in the case had been decided by this court in another cause in favor of the plaintiff in error Ziller, and had been certified to the Supreme Court, and therefore, when this case was submitted in this court, we withheld a decision of it until the Supreme Court decided the case referred to, which is Von Koenneritz v. Ziller, 245 S.W. 423. After that case was decided, this court rendered judgment reversing and remanding this case, and the defendant in error Von Koenneritz has presented a motion for rehearing. We agree with him that the plaintiff's petition in this cause does not assert a cause of action based upon a quantum meruit, and seeks a recovery only upon the right of the plaintiff to one-half of the 5 per cent. commissions allowed to executors by the statute. According to the former decision of this court and the decision of the Supreme Court in the same case, appellant was entitled to recover upon that theory, and the trial court committed error in holding otherwise, and sustaining the exception to that portion of his petition. We also hold that he was entitled to recover his half of the statutory commission upon the other items stated in his petition. The motion for rehearing will be overruled, but the opinion heretofore filed by this court will be withdrawn, and the cause remanded for another trial, consistent with the rulings of the Supreme Court and of this court. Motion over ruled. Reversed and remanded.