Bender v. Damon

• Decision Date: 23 November 1888
• Citation: 9 S.W. 747
• Court: Texas Supreme Court
• Parties: BENDER v. DAMON <I>et al.</I>

9 S.W. 747

BENDER v. DAMON et al.

Supreme Court of Texas.

November 23, 1888.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

Trespass to try title, brought by W. K. Bender against H. G. Damon and others. Plaintiff appeals from an order of the district court dismissing his petition on a general demurrer and plea to the jurisdiction.

F. P. Powell, for appellant. John D. Lee and M. B. Templeton, for appellees.

STAYTON, C. J.

In so far as the appellant sought in this suit to vacate the judgment of the district court for Navarro county, rendered against him, and to set aside the sale made under process issued under that judgment, through which he alleges appellees claim, the court below did not err in holding that such relief should be sought in the court in which the judgment was entered. All the defendants were residents of Navarro county, but the land in controversy is situated in Ellis county; and if appellant states facts sufficient to show that he has the superior title to the land, seeking as he does to recover it, then the action of the court below in sustaining defendants' plea or exception to the jurisdiction of the district court of Ellis county was erroneous, as was its action on the general demurrer. The petition alleges substantially the facts necessary to be alleged in an action of trespass to try title, and the petition was so indorsed. Had it done this, and no more, there could have been no ground for controversy in the court below as to its jurisdiction to hear and determine the cause, nor as to the sufficiency of the petition on general demurrer. The appellant, however, sought to remove cloud from his title, which a judgment in his favor in an action of trespass to try title would have accomplished, as against the defendants; and to obtain this relief he undertook to show that appellees were claiming under a sheriff's sale and deed, under an execution issued from the district court for Navarro county, on a judgment rendered by that court against him and in favor of S. J. T. Johnson, — all of which, he claimed, were invalid. Some of the facts which he alleged to show the invalidity of that judgment, execution, and sale were such as might entitle him, by a proper proceeding, to have had them vacated, but not such as to render them void. The petition, however, went further, and alleged facts which, if true, would render the judgment void. It alleged that the plaintiff was a non-resident of this state; that he never was...