Sloan v. Thompson

• Decision Date: 25 October 1893
• Parties: SLOAN et al. v. THOMPSON et al.
• Court: Texas Court of Appeals

23 S.W. 613

SLOAN et al. v. THOMPSON et al.

Court of Civil Appeals of Texas.

October 25, 1893.

Appeal from district court, McLennan county; A. C. Prendergast, Judge.

Trespass to try title by J. R. Sloan and others, as heirs of David Sloan, against M. A. Thompson and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by COLLARD, J.:

Appellants, the heirs of David Sloan, brought this suit on the 16th day of January, 1890, in form of trespass to try title, against M. A. Thompson and Jacob Miller, appellees, to recover 320 acres of land in McLennan county, patented to David Sloan on June 21, 1871. The defendants filed pleas of not guilty, three, five, and ten years' limitation, and claim for valuable improvements. Plaintiffs Phebe E. Swaim, M. M. Smith, M. E. Wilson, and N. J. Rabon replied to the pleas of limitation, setting up their coverture. Judgment was rendered for the defendants, from which plaintiffs appealed. The trial commenced on May 17, 1890, and the cause was taken under advisement until June 17th, when the judgment was rendered.

B. D. Owen, for appellants. M. Surratt, for appellees.

COLLARD, J., (after stating the facts.)

Appellants' first assignment of error is: "The court erred in overruling plaintiffs' amended or second application for a continuance." The brief of appellants cites page 5 of the transcript as containing the application, but no part of it, or the grounds upon which it is asked, are stated, nor are we advised by the brief that any exception was taken to the action of the court. On page 5 of the transcript we find a general application to continue, which is the only one in the record. The assignment of error cannot be applied to this application. The grounds of the application not being set out, we cannot see that any specific error is pointed out in the assignment. Rule 24 for the supreme court and courts of civil appeals requires that the assignment specify the grounds of error relied upon, and that a ground of error not distinctly specified shall be considered as waived. Rule 25 requires that, to be distinct, the assignment must point out that part of the proceedings contained in the record in which the error complained of is in a particular manner so as to identify it. These rules are not complied with in the assignment. Rule 31 requires that to each one of the propositions in the brief there shall be subjoined a brief statement in substance of such proceedings, or part thereof contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. This rule has not been complied with. The object of this rule is to present to the court a complete statement of the matters and questions involved in the assignment, so that the court will not be compelled to search the record and extract from it such parts as will make the assignment intelligible and applicable. The assignment of error must be considered as waived. We call attention to these rules, because they should be enforced. The case before us is not exceptional. It is not uncommon practice in preparing briefs to overlook especially rule 31, above referred to, the neglect of which demands upon the part of the court unnecessary consumption of time in the examination of the record, and collating therefrom the materials for a proper understanding and decision of the questions raised. It will be presumed that learned counsel intended to waive a point briefed, in disregard of a rule so important.

Appellants' next assignment of error is that "the court erred in striking out plaintiffs' amended original petition and bill of review, after they had taken leave to amend, and had filed same under leave of the court, and stated that the proper affidavits thereto would be and were supplied during the trial of the cause." The judgment of the court does not show any action of the court upon the bill of review, nor is there any order to that effect in the record, or order showing leave to plaintiffs to amend their petition. We are not cited to any part of the proceedings which shows that the court's attention was called to the bill of review. In so far as we are informed by appellants' brief, there is no merit in the assignment of error. Besides, the assignment points out no specific error.

Appellants assign as error the court's ruling in admitting in evidence, over their objections, "the judgment in the cause of Andrew Prather v. Heirs of David Sloan, in the district court of McLennan county, because said judgment is null and void, for it affirmatively appears on its face to have been rendered on June 14, 1874, and the plaintiffs' original petition in said cause was not filed till March 29, 1875, as shown by the petition and file mark on same." Plaintiffs proved themselves to be the heirs of David Sloan, deceased, to whom patent issued for the land in suit on June 21, 1871. Defendants claimed under the judgment mentioned in the assignment of error, by conveyances from Prather and his assignees to themselves. The minutes of the court show the judgment, number, and style, the cause No. 2,721, Andrew Prather v. Heirs of David Sloan, date of judgment June 14, 1874, and proceeds: "This cause coming on to be heard, when came the party plaintiff by his attorney, and, representing to the court that proper service had been made by publication on the defendants, and the papers and record also showing said facts to the court, and the plaintiff demanding trial, and it appearing that the defendants by allegation were alleged to be unknown, and no counsel appearing for them, it is ordered by the court that Felix H. Robertson, Esq., an attorney at law of this bar, be, and is hereby, appointed as counsel to represent the interest of said unknown heirs of David Sloan, deceased, in this litigation. And the counsel, having here announced as ready for trial, submit the pleadings and the evidence offered by the plaintiff to the court, a statement of said evidence being written out, filed, and made part of the record in this cause; and it appearing to the court, after due consideration, that the demands of the plaintiff were sufficiently established and proven, it is therefore considered, adjudged, and decreed by the court," etc., the judgment proceeding to quiet the title of Andrew Prather to the 320 acres of land in controversy as to the heirs of David Sloan, divesting title out of them and vesting the same in plaintiff. The statement of facts does not show the date of the filing of the petition in the foregoing cause, but a bill of exceptions allowed by the court shows that it was filed on March 29, 1875. The affidavit for citation by publication was made on March 29, 1875, and sworn to before D. R. Gurley, the clerk of the court. On the back of the affidavit is a file mark, dated December 10, 1876. The substituted copy of citation by publication purports to have been issued on the 27th day of August, 1875, and returned on the 20th day of January, 1876. Immediately preceding the judgment offered by defendant, in the minutes of the court, is the following entry, read by defendants in connection with the judgment: "Tuesday morning, June 14th, 1876. Court met pursuant to adjournment. Present, the same officers of the court as on the preceding day." It clearly appears from the foregoing that the judgment was rendered on June 14, 1876, upon the petition, affidavit, and proceedings anterior to the judgment, and that the date 1874, instead of 1876, was a clerical error, fully explained and corrected by the record. The assignment of error is not well taken. It was not error to admit in evidence the minutes of the court showing the entry above, preceding the judgment. The minutes were admissible to show the clerical mistake of date of the judgment.

Appellants say that the court erred in not sustaining their objection to the introduction in evidence of the judgment in cause No. 2,721, "for the reason that it is null and void, because it affirmatively appears in the pleadings of the plaintiff therein and elsewhere in the records of the cause No. 2,721 that the legal title to the land in controversy was in the defendants therein, the heirs of David Sloan, for which reason the plaintiff in said cause was not entitled to maintain a bill to remove a cloud upon his title, and to have the legal title of the said heirs canceled." Plaintiffs offered the original petition of Prather in cause No. 2,721, "which showed," as stated in statement of facts, "that the legal title to the land was in David Sloan or his heirs when said suit was instituted, the plaintiff therein alleging that the said land was patented to said David Sloan, and asked judgment divesting all title out of said heirs, and vesting the same in himself, (the said Andrew Prather,) and removing all clouds upon his title to said land." The amended petition in cause No. 2,721 alleged that David Sloan died leaving heirs, successors, and legal representatives, to whom descended whatever estate in the property in controversy he (Sloan) had or acquired in the land by virtue of the patent issued to him. In this state, under our blended system of law and equity, one holding an equitable title to land may maintain an action of trespass to try title or to remove clouds from title. We are not embarrassed with the rules of courts of equity as to equitable titles, but our courts have jurisdiction to entertain proceedings involving both law and equity, and to grant relief according to the nature of the case. The real title to land, whether it be legal or equitable, can be asserted in our district courts, and such relief granted as the parties are entitled to. Thomson v. Locke, 66 Tex. 383, 1 S. W. Rep. 112; Hardy v. Beaty, 84 Tex. 569,...