Atascosa County v. Alderman

• Decision Date: 13 December 1905
• Citation: Atascosa County v. Alderman, 91 S.W. 846 (Tex. App. 1905)
• Parties: ATASCOSA COUNTY v. ALDERMAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 846

91 S.W. 846

ATASCOSA COUNTY v. ALDERMAN.^*

Court of Civil Appeals of Texas.

December 13, 1905.

Rehearing Denied January 31, 1906.

Appeal from District Court, La Salle County; E. A. Stevens, Judge.

Action by Atascosa county against E. W. Alderman. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

F. H. Burmeister and C. A. Davies, for appellant. C. C. Thomas and E. A. Atlee, for appellee.

JAMES, C. J.

The action was in trespass to try title to a strip of land of 446.67 acres, claimed by plaintiff, Atascosa county, as part of the land patented to it as its school land. Plaintiff also claimed title to the same by virtue of an alleged agreement as to boundary line, also by virtue of limitations. Defendant Alderman answered by demurrers, by general denial and plea that the land was part of surveys owned by him. He made his warrantor, Raymond Martin, a party, who dying pending the action, his representative, Mrs. Tirsa de Martin, succeeded him as party. He also brought in M. A. Hirsch and J. W. McInnis as parties. The court sustained a plea of privilege by Martin and Hirsch, and dismissed them from the case, while Alderman himself dismissed McInnis. An exception was taken by him to the action of the court dismissing Martin and Hirsch, and from the judgment which embodied the ruling and dismissing them Alderman gave notice of appeal.

The judgment was in favor of Alderman, and he did not perfect any appeal. The county of Atascosa was not concerned in this matter, and the failure of Alderman to appeal leaves the order of the district court dismissing them in force so far as the appeal is concerned. It was not necessary for the appeal bond filed by Atascosa county to be made payable to Martin and Hirsch, and a motion objecting to the bond for that reason is overruled. A motion filed by appellee to have the statement of facts certified to by the judge amended is also overruled. It is not the subject of amendment. Appellee has filed another motion, which is to dismiss the appeal because of the clerk's certificate to the transcript, which reads: "I, J. H. Knaggs, clerk of the district court, in and for the state and county aforesaid, do hereby certify that the foregoing 87 pages contain a true copy of the proceedings had in cause No. 775, The County of Atascosa v. B. W. Alderman et al., tried in the district court of La Salle county, Texas, at the February term, 1905, thereof, and as outlined by the attorney for appellant." This is practically a certificate that it is a transcript of all the proceedings in the cause, as the statute requires, and, since the transcript was filed in this court in June, 1905, appellant has had two writs of certiorari issued to add to it matters that the clerk omitted. On November 25, 1905, on the eve of a submission of the case, this motion was made, and it comes too late to commend it to favorable consideration. Appellee has filed no transcript with a certificate in more literal accord with the statute, in which event it would have been proper to accept the latter as the transcript governing the appeal. The court submitted the case on special issues, calling for a finding whether or not a conflict existed between the school land of plaintiff and the surveys of defendant; and in the event the jury found a conflict to exist, then to answer whether or not Atascosa county had held by peaceable adverse possession the strip for more than three years prior to defendant's entry thereon. There were some subsidiary questions submitted, which are not necessary to be noticed here, because the jury answered that there was no conflict. The court also submitted the question whether there had been any agreement as to the boundary line. On this the jury found in the negative.

The court, in the introductory portion of the charge, stated that the burden was upon the plaintiff to establish by a preponderance of the evidence all the material allegations of his petition. This is alleged by the first assignment to be error because, as appellant says, where a plaintiff has pleaded several...