Andrews v. Richardson

• Decision Date: 01 January 1858
• Citation: 21 Tex. 287
• Parties: JOHN D. ANDREWS v. S. R. RICHARDSON AND ANOTHER.
• Court: Texas Supreme Court

21 Tex. 287

JOHN D. ANDREWS

v.S. R. RICHARDSON AND ANOTHER.

Supreme Court of Texas.

1858.

Where an order was made at the June term, 1847, to the effect that if the plaintiff should not amend his petition, by the first day of the term next succeeding, the case should be dismissed; and at the next term the presiding judge was incompetent to sit in the case, and various continuances were entered, and orders of court made up to December, 1854, when the venue was changed to Fort Bend county, and at the fall term, 1856, a jury was waived and the cause submitted to the court, who took the case under advisement until next term, and at the next term leave was given to both parties to amend, and on a subsequent day a motion was filed to dismiss the cause, because plaintiff's amendment was not filed in accordance with the decree of the June term, 1847, and the court dismissed the cause. Held, that the dismission was error.

Under such an order as that of June term, 1847, the amendment must have been received at any time before the case was called for trial, provided, the delay was not such as to prejudice the rights of the adverse party.

It was too late to ask the enforcement of the order of June, 1847, after the subsequent action of the parties, and especially after the case had been submitted to the court for decision on the merits.

Where under a judgment obtained in 1842, an execution was issued in 1843, and the next in April, 1846, under which property was sold, such last execution is not a nullity, and the title acquired by the purchaser is not affected by the omission. 13 Tex. 598;15 Tex. 205;22 Tex. 479;29 Tex. 217.

In a sale under an execution, where there is such a departure from the law as is sufficient to invalidate it, a party cannot be permitted to avoid the sale and retain the property without refunding the price paid by the purchaser in discharge of the judgment. And where the owner of the judgment is the purchaser at such a sale, he should upon its being adjudged invalid be reinstated in his original right in the decree or judgment and have execution thereof. Post, 772; 5 Tex. 290;26 Tex. 515.

A purchaser at such sale until it be avoided at the instance of the party having the right to complain of the irregularity is entitled to recover possession. And a tenant under the defendant in execution is not obliged to defend against him, but may attorn to him. 10 Tex. 546.

Appeal from Fort Bend. Tried below before Hon. J. H. Bell.

On the 26th day of December, 1842, League, Andrews & Co., recovered a judgment, in the district court of Harris county against Stephen Richardson and Francis Moore for $2,475.00 and costs of court upon a debt secured by mortgage, in which judgment the court decreed the sale of the mortgaged property.

On the first day of September, 1846, the sheriff under process issued upon said judgment and decree, sells the mortgaged premises to the plaintiff for $2,145.00, and executed a deed for the same to the plaintiff in which he recites the order of sale and the appraisement.

On the 1st day of January, 1847, the plaintiff leases the property he purchased under the sheriff's deed to Philip B. George, one of the defendants, for one year.

It appears from the pleadings that the defendant, George, was in possession of the mortgaged premises at the time of sale to the plaintiff, holding it as the tenant of the defendants, Richardson and Birdsall, he, Birdsall, having bought out Moore, after the mortgage to League, Andrews & Co., was executed, and as set up in plaintiff's amended petition, after judgment and decree of foreclosure. After the purchase by plaintiff, George attorns to the plaintiff, as his landlord, and enters into an indenture of lease.

Defendants, Richardson and Birdsall, then proceed against George before a justice of the peace, under the landlord and tenant law, to obtain possession of the premises sold by the sheriff to plaintiff, and by him leased to George, claiming George to be their tenant; and a judgment for possession of the premises was rendered against George on the 20th day of January, 1847, on which a writ of possession issues, and the return thereon shows that service was enjoined.

On the 30th of January, 1847, the plaintiff files his bill, praying for an injunction, etc., setting out the whole facts of his case.

The court orders the injunction to issue, restraining defendants, Birdsall and Richardson, from further proceedings against George, etc.

The defendants, Birdsall and Richardson, on the 20th May, 1847, file a motion to dissolve the injunction, etc.

On the 23d May, 1847, defendants, Richardson and Birdsall, file their answer to the bill.

On the 30th May, 1847, the court decreed a dissolution of the injunction and restoration of the property to defendants, retaining plaintiff's petition or bill on the docket, because there is equity in the bill, with leave to plaintiff to amend his petition on or before the first day of the next term of court; and if not amended by that time, that the cause be dismissed with costs.

At the December term, 1847, the counsel for plaintiff had been elected judge, and no order is made in the cause.

At the June term, 1848, death of defendant, Birdsall, is suggested, and scire facias is suggested to his representative, and leave given to plaintiff to amend and cause continued.

On the 4th of May, 1849, D. C. W. Harris, administrator of Birdsall, is made a party defendant by service of scire facias.

At the November term, 1851, the cause is continued by consent upon agreement of counsel.

On the 15th December, 1854, the plaintiff files his amended petition.

There were various continuances in the cause down to December 18th, 1854, when the venue was changed to Fort Bend county.

At the fall term. 1856, the right of trial by jury is waived, and the cause taken under advisement by the court until the next term.

At the spring term, 1857, leave is given to both parties to amend.

On the 24th June, 1857, the defendants file a motion to dismiss the cause, because plaintiff's amendment was not filed in accordance with the decree made at the May term, 1847.

At the spring term the court dismissed the cause, on the motion filed June 24th, 1857.

The plaintiff assigned as error the dismission of the cause by the court.

F. H. Merriman, for plaintiff in error. The court erred in its order to dismiss the suit, unless plaintiff's petition was amended by next term.

The record does not show that the plaintiff asked leave to amend his petition at any time previous to this order, or that any necessity existed for an amendment. It does not appear that any new parties were necessary to be made, and none are ordered to be made by the court. What was required to be embodied in the amendment does not appear in the order, and that an amendment was necessary is not shown in the bill and answers, and the order shows that the demurrer to the original petition, which sets up “that all the parties in interest are not joined” was waived.

The third assignment of errors is abandoned, as nothing appears in the record to sustain it.

The fourth and fifth assignment of errors are now presented together, “The court erred in sustaining the motion to dismiss the suit after the amendment of plaintiff.” “The court erred in giving judgment for the defendants on the pleadings as amended, and for other causes apparent on the face of the record.”

The amended petition was not filed at the next term in compliance with the order on pages 61 and 62 of the record, which was rendered on the 3d day of May, 1847. It was filed on the 15th day of December, 1854. During this time no order has been made dismissing the suit from the docket, and on the 3d of June, 1848, leave is given to the plaintiff to amend. On the 17th November, 1855, by agreement of counsel, the cause is continued. At the spring term, 1857, leave is given to both parties to amend. On the 24th day of June, 1857, the defendants filed a motion to dismiss the cause, predicated upon the order contained in the decree made at the June term, 1847, claiming that as the amended petition was not filed within the time required by the order, the cause was ipso facto dismissed by force of the order. The court dismissed the suit upon this motion.

Was the cause ipso facto dismissed by the failure of plaintiff to amend within the time required by the order of May 3d, 1847?

To dismiss the cause under the order, required subsequent action of the court, and an entry upon the record proving such action had. This was not done. It is frequently the practice in the district court, on leave to amend, for the court to order the amendment to be filed on or before the first day of the next term, but if the amendment is filed afterwards, at any time before the cause is called for trial, it has always been held to be sufficient. Also where the statute requires the answer to be filed within a specified time, if after the expiration of the time, and before the cause is called for trial, the answer is filed, the court holds it to be sufficient. Ellet v. Britton, 6 Tex. 229;Moore v. Jams, Id. 227.

The order that the plaintiff shall amend before next term of court, or the cause to be dismissed with costs, does not amount to a dismissal, and the court at the next term must make the entry of dismissal on the strength of the previous order, or upon the application of the defendants, for whose benefit it was made, to enforce the previous order. To have enforced the dismissal under the order was a power the court could exercise, when a non-compliance with the order appeared, or the defendants could then have asked a dismissal of the cause. No action was then asked or taken in relation to the order, but at a subsequent term to that at which the amendment was ordered to be filed, the cause is continued by express agreement signed by the counsel for plaintiff and defendants. Also the court give the plaintiff leave to amend at a subsequent term, and at a...