Shultz v. Lempert

• Decision Date: 20 May 1881
• Docket Number: Case No. 4347.
• Citation: 55 Tex. 273
• Court: Texas Supreme Court
• Parties: S. SHULTZ & BRO. v. W. S. LEMPERT ET AL.

55 Tex. 273

S. SHULTZ & BRO.

v.W. S. LEMPERT ET AL.

Case No. 4347.

Supreme Court of Texas.

May 20, 1881.

APPEAL from Presidio. Tried below before S. P. Carpenter, special judge.

The statement of the cause made by appellant being approved by counsel for appellee, and found substantially correct, is in the main adopted.

Suit brought by appellants to quiet their title and possession to and of two and one-half acres of a tract of one hundred and sixty acres granted to Francis Duke; and, if they could not obtain such relief, they then asked for judgment for the value of the permanent improvements made by them thereon in good faith. The suit was brought against Wm. S. Lempert and Mrs. Paula Robinson, who, it was alleged, set up title thereto.

The defendants answered the petition, setting up a claim in behalf of Mrs. Robinson and the children of Calvin Robinson to the one hundred and sixty acres granted to Duke. They alleged that the plaintiffs bought with notice of that claim; they asked that Duke be made a party, that they have judgment for the possession of the one hundred and sixty acres, and that Duke's patent be cancelled, or that they be subrogated to his rights.

To this plea in reconvention the plaintiffs pleaded not guilty.

Duke was not made a party to the suit, nor were the heirs of Calvin Robinson made parties.

On the 10th of April, 1880, the parties, by agreement, withdrew the cause from the district court and submitted it to arbitration, providing for an appeal and notice of appeal. To this agreement the heirs of Calvin Robinson were parties.

The cause being heard before the arbitrators, and they being unable to agree, an umpire was chosen, whereupon they returned their award:

1. That Duke had no just title to the land.

2. That the plaintiffs did not purchase in good faith.

3. But there should be no claim for rents against them.

On motion of the defendants the award was made the judgment of the court, the judgment being that plaintiffs take nothing by their suit, and rendered in favor of W. S. Lempert, Paula Robinson, G. Robinson, Eliza Robinson, Robert Robinson and Flora Robinson (the administrator, wife and children of Calvin Robinson), a judgment cancelling the patent to Duke, and that those persons as defendants recover the title and possession of the two and one half acres claimed by plaintiffs (giving the boundary), and all improvements, and be quieted in the title and possession of the same, and that they have their writ of possession.

It would seem that appellants bought with full knowledge of the state of the title. It is to be regretted that the testimony affecting this point is too voluminous for insertion.

Walton, Green & Hill, for appellants.

I. Francis Duke, not having been made a party to the suit, the title to the one hundred and sixty acres of land claimed by him was not in issue, and the finding of the arbitrators and the judgment of the court thereon were unauthorized. Denison v. League, 16 Tex., 409;Bailey v. Morgan, 13 Tex., 343.

II. The court erred because the award is an entirety and is not authorized by the pleadings, nor is it supported by the evidence, in that it is not responsive to the issues made by the pleadings, and in that the evidence establishes a perfect right in the plaintiffs' vendor in and to pre-emption survey No. 64, and in plaintiffs a perfect right to, and purchase in good faith of, the land and premises in controversy, and at the same time demonstrates that the defendants, nor any of them, have rights in the case. As to acquisition of pre-emption, see acts 1870, pp. 68, 69, secs. 1, 2, 4; 2 Pasch. Dig., arts. 7045, 7046, 7048, 7052; acts 1873, pp. 101, 202, secs. 1-4; Spier v. Laman, 27 Tex., 215;Cravens v. Brooke, 17 Tex., 268;Jennings v. DeCordova, 20 Tex., 508;Kohlhass v. Linney, 26 Tex., 334. As to diligence in prosecuting rights, see Teel v. Huffman, 21 Tex., 782;Williams v. Craig, 10 Tex., 437; Crow v. Reed, 25 Tex. Sup., 392; Patrick v. Nance, 26 Tex., 301. As to absence, see Taylor v. Boulware, 17 Tex., 77;Bledsoe v. Cains, 10 Tex., 458-9;Green v. Crow, 17 Tex., 183-4. As to absence after perfecting right, see O'Neal v. Manning, 48 Tex., 406-7;Kessler v. Draub, 52 Tex., 575. As to good faith, see Sartain v. Hamilton, 12 Tex., 222;Dorn v. Dunham, 24 Tex., 380;Hill v. Spear, 48 Tex., 585;Hutchins v. Bacon, 46 Tex., 412, 413;Miller v. Brownson, 50 Tex., 596-7;Hatchett v. Conner, 30 Tex., 112-13. As to payment of consideration a circumstance of, see Harrison v. Boring, 44 Tex., 262. As to notice, see Wade on Notice, 19, 48; Watkins v. Edwards, 23 Tex., 447;Wethered v. Boone, 17 Tex., 150;Hawley v. Bullock, 29 Tex., 222-3. As to special plea by defendants, see Shields v. Hunt, 45 Tex., 426;Custard v. Musgrove, 47 Tex., 218. As to effect of patent, see Kimbro v. Hamilton, 28 Tex., 567-8;O'Neal v. Manning, 48 Tex., 406-7;Miller v. Brownson, 50 Tex., 591-2;Johnson v. Eldridge, 49 Tex., 507, 521.

III. The court erred because the judgment upon said award is not authorized by the pleadings, for that there are but two defendants in the case, to wit, Lempert and Paula Robinson, whilst the judgment is not only for those two, but for Robert Robinson, Eliza Robinson, Flora Robinson and Guilermo Robinson, who are not parties to the suit. Armstrong v. Armstrong, 10 N. J. L., 357; Douglass v. Massie, 16 Ohio, 271.

IV. The case was tried by one S. P. Carpenter, assuming to be special judge, whereas there is not shown any disqualification of the district judge or agreement giving authority to said Carpenter as special judge, or that said Carpenter as special judge was duly qualified. Brinkley v. Harkins, 48 Tex., 225.

Hancock & West, for appellees.

GOULD, ASSOCIATE JUSTICE.

We have been embarrassed in this case because the record is confused, leaving it somewhat uncertain what attitude the case occupies. After suit brought, and answer and cross-bill filed, there was an agreement under the statute to arbitrate, reserving, however, a right of appeal. An examination of the statute makes it plain that by this right of appeal is meant a right, on making written and timely application therefor, and having the opposite party served with citation, to have the cause “stand for trial de novo, as in ordinary cases.” R. S., arts. 51, 52.

Trial de novo does not mean a trial on appeal and on nothing but the record to correct errors, but does mean a trial of the entire case anew, hearing evidence, whether additional or not. Moore v. Hardison, 10 Tex., 471. Strangely, yet clearly, the statute allows the parties, by reserving the right of appeal, the power of nullifying the award, if dissatisfied therewith, and of having the case tried anew without regard to the agreement to arbitrate or the award made. With this right of appeal reserved, the arbitration becomes nothing more than an experimental attempt to satisfy both parties; and when the failure of that attempt is shown by the application and citation before spoken of, the case stands for trial as if there had been no agreement to arbitrate. If no right of appeal is reserved, and the agreement, proceedings and award are in substantial compliance with the statute, then the award will, on motion, be made the judgment of the court, unless indeed it be impeached on equitable grounds, such as fraud or gross mistake. Fischer v. R. R. Co., 16 Tex., 531-2;Payne v. Metz, 14 Tex., 56. On questions of fact the award, unless so impeached, is conclusive. Moore on Arbitration, pp. 315, 316. The utility of arbitration depends much on its conclusiveness. Omitting the right of appeal, the statute affords a mode of settling disputes promptly and conclusively, and yet leaves the award open to be objected to when it is in excess of the authority granted the arbitrators, or to be impeached on grounds of fraud, corruption or gross mistake.

Examining this record we see that there was an award, and that, on motion, that award was made the judgment of the court. It does not appear that there was any application for appeal made, but, so far as the record shows, the award was made the judgment of the court...