Bomar v. Morris

• Decision Date: 26 February 1910
• Citation: 126 S.W. 663
• Court: Texas Court of Appeals
• Parties: BOMAR et al. v. MORRIS et al.

126 S.W. 663

BOMAR et al. v. MORRIS et al.

Court of Civil Appeals of Texas.

February 26, 1910.

Rehearing Denied March 26, 1910.

Error from District Court, Hale County; L. S. Kinder, Judge.

Trespass to try title by F. W. Struve against Lizzie B. Morris, Brinkley Morris, and others, in which defendants Morris pleaded over against E. P. Bomar and another as executors of J. E. Bomar. From a judgment for plaintiff against Lizzie B. Morris and Brinkley Morris, and in their favor over against E. P. Bomar and another, as executors, the executors bring error. Reversed and remanded as to defendants Bomar and another as executors, and otherwise affirmed.

L. W. Dalton and C. Nugent, for plaintiffs in error. E. Graham and Robt. G. Johnson, for defendants in error.

DUNKLIN, J.

By original petition filed July 5, 1906, F. W. Struve sued Brinkley Morris, Mrs. Lizzie B. Morris, and others to recover a tract of land described as "section No. 18 in block JK 2 surveyed by virtue of certificate No. 4/638 issued to the G. C. & S. F. Ry. Company containing 640 acres of land." The petition was in the usual form of a suit in trespass to try title. Brinkley Morris and Mrs. Lizzie B. Morris filed an answer to the petition, in which they disclaimed any interest in the land, unless it should be shown that the survey so described conflicted with survey No. 53 in block A 1 purchased by them from J. E. Bomar, now deceased, by deed of conveyance with covenants of general warranty of title, and, in the event of such a conflict, they pleaded not guilty, a general denial, limitation of three, five, and ten years, and for recovery over against D. T. Bomar and E. P. Bomar, independent executors of the estate of J. E. Bomar, deceased, on said covenant of warranty of title. Owners of other surveys adjoining that claimed by plaintiffs were also made parties defendants. Said executors were served with citations requiring them to appear and answer plaintiff's original petition, although in that petition they were not named as defendants. The citations, after reciting the names of the parties, plaintiff and defendant, and the nature of plaintiff's demand, also recited the filing of the original answer of defendants Brinkley Morris and Mrs. Lizzie B. Morris, and the allegations therein contained made the basis of the plea over against D. T. and E. P. Bomar, executors, and commanded the officer executing the writ to serve D. T. and E. P. Bomar each with a true copy of plaintiff's original petition and the original answer of Brinkley Morris and Mrs. Lizzie B. Morris, but did not, in terms, require D. T. and E. P. Bomar to appear and answer said plea over against them. The record does not contain any other citation against the executors nor any pleading filed by them. After amended pleadings by the other parties, the only controverted issues left for determination between them were such as arose from conflicts between the survey claimed by plaintiff and those claimed by defendants who filed answers. Plaintiff's suit against defendants ...