Botts v. Martin

• Decision Date: 01 January 1875
• Citation: 44 Tex. 91
• Parties: W. B. BOTTS v. F. C. MARTIN.
• Court: Texas Supreme Court

44 Tex. 91

W. B. BOTTS

v.F. C. MARTIN.

Supreme Court of Texas.

1875.

APPEAL from Van Zandt. Tried below before the Hon. M. H. Bonner.

J. J. Hill, for appellant.

No counsel for appellee.

IRELAND, ASSOCIATE JUSTICE.

This suit was brought to recover a tract of land described in the pleadings. On the 16th day of July, 1875, the attorneys for both parties made and filed in the cause an agreement about the heirship of plaintiffs and other facts relied upon by plaintiff, and on behalf of defendant it is stipulated that he went into possession at a certain day and has remained in possession up to date. On the 17th day of July plaintiff filed a replication to defendant's answer to meet the statute of limitations, alleging that some of the plaintiffs were married women and minors. It appears from a bill of exceptions contained in the record that upon a question arising between the parties as to the legal effect of the agreement filed and as to what it was designed to prove, and upon the court calling the attention of the parties to that disagreement, that plaintiff's counsel remarked to the court that he desired to withdraw the agreement, but after a few minutes' consultation with another attorney standing by he turned again to the court and remarked that “he would take back what he said about withdrawing the agreement.” Thereupon counsel for defendant gave notice to the court that he “would ask to withdraw the agreement and abandon the same.” The judge below, in signing a bill of exceptions, states that this occurred on the 6th day of the month, and when the cause had been called up out of its order and submitted to the court, defendant insisting that it was to be submitted upon the pleadings as they stood when the agreement was filed and before the replication was placed on file. That the cause was then withdrawn from the court, and nothing more occurred until the 21st. The bill of exceptions recites that before the case was reached for trial defendant's attorney made a verbal motion to withdraw the agreement from the file, and this being resisted by plaintiff, the court ordered the parties to put their motion and the objections to it in writing, the court stating that from the grounds mentioned and what had occurred under the personal knowledge of the court he would sustain the motion. The cause was then passed, and on the 2d day of the third week the cause was regularly reached, when the parties announced ready for trial, no mention being...