Roller v. Ried , 87 Tex. 69 ( 1894 )

The application and accompanying papers show that appellees brought suit to partition four tracts of land, one of which is the subject matter now in controversy, and the petition alleged the respective interests of each person plaintiff and defendant.

T.W. Scott and John E. Roller were made defendants, and the petition alleged that they together owned nine twenty-fourths of the four tracts to be partitioned.

Roller was alleged to be a resident of the State of Virginia, and notice of that suit, with a copy of the petition, was served on him at his residence on September 24, 1887, but he made no appearance.

T.W. Scott answered, alleging, that he was "the owner in simple title and is entitled to the possession of an undivided five-eighths interest in the four several tracts of land described in plaintiffs' petition, and that all allegations of ownership in either of the plaintiffs herein, or in ally of his codefendants, inconsistent with his claim here asserted by him are untrue and ought not to be allowed; * * * and he further says, that his said interest is undivided, and he prays that the court proceed to fix the several interests of the parties to this action, and set apart to this defendant his said five-eighths interest, and place him in possession thereof. He further prays the court to adjudge the claims herein set up by the defendants Slayton and Horst as without foundation, and that all titles be divested out of them and all the other parties to this action to the five-eighth interest claimed by this defendant."

Mary Y. Cannon was not a party, either plaintiff or defendant, to the suit as originally brought; but she subsequently made herself a party, and asserted title to one undivided eighth of the land now in controversy; but of her claim Roller had no notice until a final decree was rendered. No notice was given to Roller of the claim asserted by T.W. Scott.

On May 27, 1888, the four tracts of land were partioned among plaintiffs and defendants and Mrs. Cannon, she receiving one-eighth of the tract in controversy. All right of Roller, however, was divested, and it was decreed that he take nothing.

The inference from the application is that the tract in controversy was divided between three of the plaintiffs, one of the defendants, and Mrs. Cannon.

The entire decree seems to have been entered on agreement of parties who appeared.

In December, 1888, that decree was affirmed, and this suit was brought soon afterwards to set it aside.

On hearing it was set aside, and half of the land in controversy was adjudged to applicant, who also recovered judgment against another party to the suit on warranty of title to the other part of the tract, and from that judgment he appealed.

The judgment, however, was affirmed by the Court of Civil Appeals, on the ground that the trial court erred in setting aside the former judgment; but no decision was made by that court on the merits of the claim of title asserted by the respective parties.

While the application shows how applicant in his petition claims to deraign title, there are no conclusions of fact or law presented in reference thereto; nor is a statement made in the application from which it may be ascertained what facts were proved bearing upon that question; what rulings of the trial court were made and objected to, and presented to the Court of Civil Appeals.

In this state of the application it is impossible to ascertain that any injury resulted from the ruling of the Court of Civil Appeals; and until the contrary is shown in some legal manner, the presumption is that applicant recovered all the land he was entitled to.

We concur in the ruling of the Court of Civil Appeals, that such accident or mistake was not shown as would excuse the want of diligence on part of applicant to defend the suit; and notwithstanding the averments of the petition as to the ownership of the several parties, the entry of judgment on agreement contrary to the averments might not have constituted such fraud as would require the judgment to be set aside.

We are of opinion, however, that the action of the trial court was correct in so far as its action in setting aside the former judgment went; and although the application must be refused on the ground that it does not show that applicant was entitled to more than he received on last trial, still we deem it proper to state the grounds on which the ruling of the trial court in reference to the former judgment is believed to have been correct; for otherwise the overruling of the application for writ of error might, and doubtless would, be understood as an approval of the ruling of the Court of Civil Appeals in that respect.

The pleadings of T.W. Scott in the former suit asserted right in him not made known by the copy of petition served on applicant, and they alleged rights hostile to him; and it may be true that under such circumstances applicant was entitled to notice of that claim, he not appearing, before the court could have power to bind him by an adjudication; and if so, the judgment was properly set aside, without reference to diligence on part of applicant to defend the suit. If, however, it be true that applicant, under the notice given to him, would be bound to take notice of pleadings by any person named in the petition as a defendant, a matter we do not now intend to decide, it is clear that he was entitled to notice of the claim subsequently asserted by Mary Y. Cannon, and that the court had not jurisdiction over him as to her claim without such notice. Morrison v. Walker, 22 Tex. 18; De Walt v. Snow, 25 Tex. 320 [25 Tex. 320]; Furlow v. Miller, 30 Tex. 28; King v. Goodson, 42 Tex. 152; Stewart v. Anderson, 70 Tex. 598.

The suit being for partition, it was necessary that every defendant not appearing should have notice of her adverse claim, in order to confer on the court jurisdiction to make partition.

If plaintiffs had set up claim other than that asserted in the petition, applicant would have been entitled to notice of that, and of the claim made by Mary Y. Cannon there can be no pretense that he had notice.

If applicant had no interest in the four tracts of land except in the one now in controversy, then partition of the others might have been permitted to stand as between the parties who took under the former decree, if as to them it worked no injustice; and if through them third persons, on the faith of that decree, had acquired interests in the other tracts, then in so far, for the protection of such persons, it might have been proper to hold the former partition binding, and to have required persons who took under the decree to have adjusted their equities in some manner other than a repartition.

Although there was error in the decision of the Court of Civil Appeals in the matters complained of in the application, the writ of error must be refused because it is not made to appear that applicant was entitled to any relief he did not obtain through the judgment appealed from.

Application refused.

Delivered March 12, 1894.

Motion for rehearing upon amended application was granted.