Butcher v. Tinkle, 4254.

• Decision Date: 19 October 1944
• Docket Number: No. 4254.,4254.
• Citation: 183 S.W.2d 227
• Parties: BUTCHER et ux. v. TINKLE et al.
• Court: Texas Court of Appeals

Page 227

183 S.W.2d 227

BUTCHER et ux. v. TINKLE et al.

No. 4254.

Court of Civil Appeals of Texas. Beaumont.

October 19, 1944.

Rehearing Denied November 8, 1944.

Appeal from District Court, Nacogdoches County; H. T. Brown, Judge.

Suit in trespass to try title by R. L. Tinkle and others against W. F. Butcher and his wife. From a judgment for plaintiffs, defendants appeal.

Reversed and remanded.

Vernis Fulmer, of Nacogdoches, for appellants.

A. J. Thompson, of Nacogdoches, for appellees.

COE, Chief Justice.

This is a suit in trespass to try title, filed by appellees, R. L. Tinkle et al., on July 28, 1942, in the ordinary form of trespass to try title, against appellants, W. F. Butcher et al. (referred to in pleadings as Will Butcher and wife, Mrs. Will Butcher, and in other parts of the record as Willie Butcher and Mrs. Willie Butcher), seeking to recover a tract of land in Nacogdoches County, Texas, of approximately 50 acres. Appellants, defendants below, filed a plea of general denial. Judgment was for appellees for the land sued for, and appellants perfected their appeal to this court by filing the statutory affidavit of their inability to pay costs.

As reflected by the bills of exceptions allowed by the court, and his judgment and findings of fact, on the 29th day of January, 1944, this cause was set for trial on the following February 24th, on which day the plaintiffs, appellees here, announced ready for trial. The attorney for the defendants, appellants in this court, announced to the court that neither his clients nor his witnesses were in attendance upon the court and prayed for a temporary postponement of the trial until he could ascertain the reason for their absence, which request was by the court overruled. In that motion, said attorney set up, among other things, that he had notified his clients by letter several days before the date the cause was set for trial to be present with his witnesses and ready for trial when his case was reached; that they lived out in the country on country roads, and that that section of the state had just undergone a siege of unprecedented rains for several days and nights and that he supposed that was the reason that they were not in attendance upon the court. After overruling defendants' motion for postponement, the court proceeded to hear the testimony of the plaintiffs. At the conclusion of the plaintiffs' testimony, upon the request of the attorney representing plaintiffs, as stated in his findings of fact and conclusions of law, "the court agreed to leave the case open until March 6, 1944, for the sole purpose of allowing defendants to submit any admissible testimony which they might have under the pleadings, and the court acceded to such request and left the case open for such purposes, and such purposes only." On the following day, to-wit, February 25, 1944, appellants requested the court to permit them to file a trial amendment in which they proposed to specially plead their title. This request on the part of the defendants was denied by the trial court and proper exceptions were taken to such action.

When the case was again reached on March 6th, the defendants filed an application for a continuance, which was denominated their first application, in which they set up as a reason for not being able to safely go to trial at that time, the absence of one Mrs. Bessie Bass, who they alleged would testify among other things that J. H. Tinkle told her that he, J. H. Tinkle, in referring to the land in controversy, "had nothing in it now but that he, Joe (J. H.) Tinkle, had let Willie Butcher have it and that now it belonged to Willie Butcher," and that she then went to Willie Butcher and rented the land from him for the year 1941, for the purpose of raising a crop thereon, which she did and paid the rent to Willie Butcher, to which action J. H. Tinkle made no objection, and that Willie Butcher and wife claimed said land as their own. While the motion sets out that the said witness would give testimony as to other matters, as we view it, this is the only portion of it that would have had any bearing on the question of title; that application had been made for a subpoena for Mrs. Bessie Bass on March 2, 1944. The sheriff's return shows that the subpoena was served upon the witness on March 2, 1944. Said sheriff's return further shows that said witness was sick in bed, in the act of being confined. Also the absence of the defendant, Mrs. Willie Butcher, who they represented, if present, would testify that she is the holder of a certain warranty deed dated April 13, 1940, from N. E. Tinkle to J. H. Tinkle, showing a consideration of $10, and other good and valuable considerations, covering the exact description of the land involved in this suit, and that she had had such deed in her possession, together with other papers, all the time since J. H. Tinkle passed title to her and Willie Butcher, and that said J. H. Tinkle passed title to these defendants shortly following the date of the said deed and prior to his death, and because of the absence of other witnesses who were not named, who, as alleged in a general way, would have testified to the same state of facts. In addition to the foregoing facts, he alleged that he could have proved by each of said witnesses various other facts, altogether too lengthy to set out in this opinion, the relevancy and admissibility of which could not be determined without a statement of facts. Appellants also contended in said motion that the defendants had a constitutional and legal right to be present at all stages of the trial and that the motion was not made for delay but that justice may be done; that both of the defendants were physically unable to attend the trial on March 6th, which allegation was supported by the certificate of their family physician.

Appellants predicate their appeal on eleven separate points or assignments of error. In substance, such points are that the court erred in overruling appellants' motion for a temporary postponement of the case on February 24th when it was reached for trial; that the court erred in refusing to grant their motion for continuance filed on March 6th; that the court erred in allowing certain witnesses to give certain testimony; complaining of the date upon which the court filed its findings of fact and conclusions of law, which had been twice requested by the defendants, claiming the same to have been filed too late; complaining of the form and substance of such findings as not finding support in the evidence; the error of the trial court in refusing the defendants permission to file trial amendment on February 25th; and because of the error of the court in not requiring the court reporter to prepare and file a statement of facts in this case, after having been requested so to do. Tht 9th point complains of the court's ruling in refusing and not permitting defendants to offer certain instruments in evidence. They also complain of the court's action in admitting the deed of November 1941 from N. E. Tinkle to remain in the record because of the testimony of one Mrs. Buble, one of the plaintiffs, who testified that she claimed as an heir of her father, J. H. Tinkle.

It will be noted that the plaintiffs filed a petition in the usual form of trespass to try title while the defendants plead a general denial, but for some reason failed to file a "plea of not guilty."

As this record is presented to the court, it is difficult to ascertain whether...