Baten v. Kirby Lumber Corporation, 8998.

• Decision Date: 26 May 1939
• Docket Number: No. 8998.,8998.
• Citation: 103 F.2d 272
• Parties: BATEN et al. v. KIRBY LUMBER CORPORATION.
• Court: U.S. Court of Appeals — Fifth Circuit

103 F.2d 272 (1939)

BATEN et al. v. KIRBY LUMBER CORPORATION.

No. 8998.

Circuit Court of Appeals, Fifth Circuit.

April 19, 1939

Rehearing Denied May 26, 1939.

W. D. Gordon, A. M. Huffman, and C. E. Pool, all of Beaumont, Tex., for appellants.

E. J. Fountain, of Houston, Tex., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

Kirby Lumber Corporation sued Thos. J. Baten, Kelly Williams and wife, Southern Lumber Company and others in trespass to try title for a large tract of land in Hardin County, Texas, referred to as the J. V. Richardson survey, minutely describing it, and for damages for cutting timber therefrom, praying "judgment for the title and possession of the above described land and for damages against defendants." Baten answered with general denials, and by cross-action prayed to recover of plaintiff a specially described tract of 160 acres called the J. T. Overstreet survey. Williams and wife answered by general denials, and by cross-action sought to recover another 160 acres, or at least his actual enclosure thereon, which he claimed by a ten year limitation title. Southern Lumber Company admitted cutting the timber off of 115 acres of the Overstreet survey after a sale of it by Baten. The jury found this verdict: "We the jury find in favor of the plaintiff against the defendants, and in favor of plaintiff and against defendants Baten and Southern Lumber Company for 241,475 feet of timber for the sum of $1895.83. We the jury find in favor of the plaintiff and against Kelly Williams and wife." The court entered judgment on the verdict for the land sued for, described somewhat differently from the description in the petition, and for the damages found, and that defendants recover nothing of plaintiff. Baten having died, his administratrix and Williams and wife have made separate appeals.

The trial was had under the Conformity Act, 28 U.S.C.A. § 724; but the appeals were taken under the Rules of Civil Procedure. The condensation of the evidence made by the appellants was unsatisfactory to the appellee, and it sent up a full transcript of the stenographer's report approved by the District Judge. Appellants have not had the latter printed, and appellee moves to dismiss the appeal. We find that no motion by any appellant was made in the trial for an instructed verdict, so that no question of the sufficiency of the evidence has been properly raised; and the proceedings as the appellants have caused them to be printed do not warrant a reversal for any error in the trial. We will not order the supplemental transcript printed nor dismiss the appeals because it has not been printed.

The Baten appeal is sought to be dismissed also because the appeal bond signed by the administratrix is not accompanied by any authority from the Probate Court. We need not enquire whether or not the bond binds the estate. If it does not it binds her, and especially it binds the sureties and that is sufficient.

The appeal of Kelly Williams and wife shows no error peculiar to them. The judge submitted to the jury the question of Williams' continuous adverse possession for ten years. They were charged that if during the ten year period there was the slightest acknowledgment of the record title it would defeat his claim, without his wife's joining in the acknowledgment. This instruction is not claimed to be erroneous in law, but unsupported by any evidence. A witness testified that at a time which though not precisely fixed the jury could have found was before the expiration of the ten years, he as representative of plaintiff called to see Williams about the field which Williams was cultivating, which the jury could have found was the enclosure here claimed by Williams, and asked him and his wife to sign an acknowledgment of tenancy which was presented to them; and he believed Williams signed it, but his wife did not wish to unless it was agreeable to her brother H. B. Holland. Williams said it made no difference to him, but the field was on land of Holland, and it might interfere with Holland's title. Williams made no claim to it himself but said it was Holland's land. We think this transaction authorized the charge. Williams was paying no taxes on the land. That the judge did not charge wrongly, and that the jury were justified in rejecting Williams' claim of adverse holding appears from Manning v. Standard Oil Co., Tex.Civ.App., 67 S.W.2d 919.

Error is also claimed in a charge to the effect that if part of the Richardson survey was held in possession by a tenant of plaintiff it would restrict Williams' adverse claim to his actual occupancy. Since the jury found that Williams had no title by limitation at all, the matter of whether it should be restricted to actual occupancy or be extended to 160 acres becomes immaterial.

On Baten's appeal we are at once confronted with a failure of the judgment to conform to the pleadings, which is assigned as error. The description by courses and distances of the land sued for as set forth in the petition is: "On the south side of Big Sandy Creek: Beginning at the northwest corner of a survey made for Jeremiah Goins, a stake from which a magnolia mkd. A L Bears North 88 East 2 varas. Thence South through hickory, magnolia and pine timber at 2733.8 varas intersecting the North boundary line of a survey made for John Dooling at a stake from which a sweet bay mkd. A L bears south 30½ west 2 varas. Thence with said survey (D...