Batjer v. Roberts

• Decision Date: 30 May 1912
• Citation: 148 S.W. 841
• Parties: BATJER v. ROBERTS.
• Court: Texas Court of Appeals

148 S.W. 841

BATJER v. ROBERTS.

Court of Civil Appeals of Texas. El Paso.

May 30, 1912.

Rehearing Denied June 19, 1912.

Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.

Action between E. G. Batjer and C. W. Roberts. From a judgment for the latter, the former appeals. Reversed and rendered.

Hardwicke & Hardwicke, of Abilene, for appellant. Sayles & Sayles and Kirby & Davidson, all of Abilene, for appellee.

PETICOLAS, C. J.

This suit was one in trespass to try title for a lot in the city of Abilene, Tex. It appears from the statement of the nature and result of the suit, made by appellant, and which is agreed to by appellee, that about August 18, 1896, Roberts was the owner of the lot; that, joined by his wife, he executed a deed of trust securing a building and loan association in the payment of certain indebtedness. Thereafter said building and loan association was thrown into the hands of a receiver by a bill in equity filed in the United States Circuit Court, Western District of Texas, at San Antonio. In January, 1897, one W. C. Robards was appointed receiver, with power to take possession of assets and prosecute suits, etc. He qualified, and came into possession of the Roberts indebtedness. The receiver filed in said court an ancillary bill against Roberts and wife and the trustee in the deed of trust, asking a foreclosure of the deed of trust lien on the property covered. November 7, 1899, the circuit court, on motion for decree pro confesso, decreed that a subpœna had been duly issued and served on Roberts and his wife, that Bergen, the trustee, had disclaimed; that no appearance had been made by the defendants, nor had they filed any demurrer, plea, or answer; that plaintiff had had an order duly entered taking said bill pro confesso more than 30 days prior to the hearing of the motion for the decree; that no proceedings had been taken by the defendants or either of them. Thereupon the court adjudged that said bill stand pro confesso against Roberts and wife, found the indebtedness against Roberts, the making of the deed of trust, the lien on the property, and referred the same to the master to state the account. In May, 1900, the bill coming on again to be heard, in a decree reciting service on Roberts and wife and the other matters which had been mentioned, final judgment was entered for the debt, foreclosure, etc., and W. A. Minter was named master to sell the property. November 26, 1901, Minter filed his report of sale, showing that on October 1, 1901, he sold the property to W. C. Robards, the receiver. The report was confirmed by the court November 26th, and said Minter directed to convey the property to the receiver, which he did by deed. December 20, 1901, writ of assistance was issued, Roberts was dispossessed, and Robards, the receiver, put in possession. December 23, 1901, the court made its order naming Minter special commissioner to sell the property as the property of said association. April 1, 1902, Minter sold the property, at which sale the appellant purchased the property in controversy, paying $300 to the receiver therefor. By supplemental petition the plaintiff in this case alleges that the subpœna issued out of the United States court was not served until after its return day, that it was functus officio, and that said court never at any time acquired jurisdiction. The case was submitted on special issues and resulted in a judgment in the court below for Roberts.

To our mind, we need discuss but two points which are raised by the assignments.

It is contended by the appellant that this judgment cannot be...