Montgomery v. Carlton , 1882 Tex. LEXIS 51 ( 1882 )

Bonner, Associate Justice.

The first two assigned errors, that the court erred in permitting the defendants to go to trial within the time within which the criminal docket had been set, and that the court erred in permitting the defendant to read from the records of deeds without previous notice, however true they may have been in point of fact, are not sustained either by bill of exceptions or otherwise by the record.

The third assigned error is that the court erred in entering judgment for the six hundred and forty acres of land set up in defendant’s answer, when said answer admitted that the field notes in the deed under which he claimed title showed that it did not include any land at all.

By the answer of the defendant it is alleged that the second call in the field notes of the land claimed by him was by mistake omitted in one of the deeds in his chain of title, and that unless supplied the deed would not convey any land. It is further alleged, in effect, that the true description could be ascertained by the recitals and description given in the chain of title under which he claims, and which title was derived in part through the ancestors of plaintiffs.

The answer sought to correct this defect in the description. The testimony of Toliver, a practical surveyor, showed that from the description given in the deed from John G. Montgomery and wife, the ancestors of plaintiffs, to the Terrells, which was one of the links in defendant’s chain of title, and by reversing the calls in the field notes, the missing call could readily be supplied, and the land identified on the ground by any surveyor, and that he had in fact so identified it. This, then, does not present the case of such patent defect upon the face of the deed as would render it void for want of certainty, and which could not be aided by parol extrinsic testimony. Norris v. Hunt, 51 Tex., 609.

The fourth and last assigned error is that the court errred in overruling plaintiffs’ motion for a new trial; said motion showing that plaintiffs’ counsel was unavoidably absent on account of being too sick to attend court, and was misled in supposing no civil business would be tried during the time set for the trial of criminal cases, and that they had a meritorious cause of action, and were prevented from presenting the same on account of the sickness and absence of their counsel, and that they had not had a fair trial.

In the motion for a new trial, like one to set aside a judgment by default, "the plaintiffs should have shown, not only that they were not guilty of negligence, but also that they had a meritorious cause of action. If the-grounds for the motion were not sustained by the record— as they were not in this case,—-the motion should not only have been supported by affidavit of the plaintiffs, their agent or attorney, but if based upon some fact of which this affidavit was but secondary evidence, as the testimony of some third party or a chain of title evidenced by writing, then, as a general rule, the affidavit of this third party or this chain of title should also be exhibited with the motion.

[Opinion delivered March 10, 1882.]

The gravamen of the motion for a new trial in this case was, that the counsel for plaintiffs was sick and not present, and that they did not have a fair trial. And further,, that they had a good cause of action, acquired since January 1, 1876, as well as that acquired by their ancestors in 1853.

If it be admitted that the absence of plaintiffs’ counsel was sufficiently accounted for, still the motion for a new trial was defective in not setting out or exhibiting the chain of title relied on by plaintiffs; and it does not appear by the record that this defect was cured, or offered to be cured, by evidence on the "submission of the motion.

The case as presented by appellants’ brief is one of hardship, and we have given the record a very careful consideration, but as presented, we cannot see that there was error in the judgment below, and it is accordingly affirmed.

Affirmed.