Anderson v. Anderson

• Citation: 67 S.W. 404
• Parties: ANDERSON et al. v. ANDERSON et al.
• Decision Date: 03 April 1902
• Court: Supreme Court of Texas

67 S.W. 404

ANDERSON et al. v. ANDERSON et al.

Supreme Court of Texas.

April 3, 1902.

Certified question from court of civil appeals of Third supreme judicial district.

Trespass to try title by Laura A. Anderson and others against W. C. Anderson and others. From a judgment for plaintiff Laura A. Anderson, defendants appealed to the court of civil appeals. Certified questions from the court of civil appeals.

Jenkins & McCartney, for appellants. T. C. Wilkinson, for appellees.

BROWN, J.

The court of civil appeals for the Third supreme judicial district has certified to this court the following statement and question:

"This is an ordinary action of trespass to try title, brought by five plaintiffs, alleging in their petition that they are the joint owners of the land in controversy. The undisputed testimony establishes the fact that Laura A. Anderson, one of the plaintiffs, owns the land in her own separate right, and that neither the other plaintiffs nor the defendants have any title thereto. The defendants objected to the testimony showing the title to be in Laura A. Anderson, upon the ground that it was at variance with the averment of joint ownership in the plaintiffs' petition. The court overruled the objection, and rendered judgment for Mrs. Laura A. Anderson for the land in controversy, and that the defendants recover costs from them. This ruling and action of the court is assigned as error.

"With this statement and explanation, the court of civil appeals for the Third district certifies to the supreme court for decision this question: Did the district court commit reversible error in overruling the objections urged to the plaintiffs' testimony showing title in Mrs. Laura A. Anderson, and in rendering judgment for her for the land in controversy? In other words, was the variance between the averment of joint ownership in the petition and the proof fatal to Mrs. Laura A. Anderson's right to recover?"

To the question, we answer there was no error in admitting evidence to establish the title of Mrs. Anderson, nor in rendering judgment in her favor for the land. Article 1476 of Paschal's Digest reads as follows: "Judgments in the district court shall in all cases be rendered so as to conform to the pleadings, the nature of the case as proved, and the verdict thereon." This statute was in force at the time Judge Moore delivered the opinion in Teal v. Terrell, 48 Tex. 509, in which he said: "There is also, in my opinion, an error, not discussed by counsel, or distinctly presented by the assignment of errors, but going to the foundation of the judgment, which would require its reversal, and to which, in remanding the case to the district court, it is proper to call the attention of the parties. The plaintiffs, in their petition, claim to be joint owners of the land sued for; and they have, by the judgment, jointly recovered. But the evidence shows several titles for some of the...