Cable v. Jackson

• Decision Date: 09 June 1897
• Citation: 42 S.W. 136
• Court: Texas Court of Appeals
• Parties: CABLE et al. v. JACKSON et al.<SMALL><SUP>1</SUP></SMALL>

42 S.W. 136

CABLE et al. v. JACKSON et al.¹

Court of Civil Appeals of Texas.

June 9, 1897.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by James Jackson and others against Ben T. Cable and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Barnard & McGown, Franklin & Cobbs, and John A. Green, Jr., for appellants. Upson, Bergstrom & Newton, for appellees.

NEILL, J.

The appellees, James Jackson, Joel S. McGill, Robert Mason, Jas. Jackson Mason, David Mason, and Charles Mason, brought this suit on the 20th of January, 1888, in the form of an action of trespass to try title against Ben T. Cable and Lucy R. Cable to recover the Charles S. King survey, No. 86, situated in Bexar county, Tex. Afterwards, upon the 13th day of September, 1889, by an amended petition, the appellees made George A. Castleman, whom Lucy R. Cable married subsequent to the institution of the suit, a defendant, and also, by said amendment at the same time, made Mrs. M. J. Cable a party defendant. On February 1, 1893, the defendant Mrs. M. J. Cable, in the suit numbered on the docket as 525, filed her motion for a severance, alleging that she only claimed a portion of the land in controversy, which was that held by law by virtue of a patent to F. W. Huesmann, of survey No. 73½, which is separate from the claim of title asserted by her co-defendants, who claim that portion of the land in controversy in conflict with the Clark L. Owen survey No. 73. She alleged further, in the motion, that she was entitled to a separate trial of her right and title to the part of the land claimed by her. On March 19, 1893, the court granted the motion for a severance, and ordered that the case of plaintiffs against M. J. Cable be docketed as No. 525½, and styled "James Jackson et al. vs. M. J. Cable." Subsequent to the order of severance, Mary J. Cable, on the 6th day of June, 1895, died, and, her death being suggested to the court, Ben T. Cable, Lucy C. Castleman, the devisees of M. J. Cable, were, with George A. Castleman, made parties defendant by an amended petition filed by plaintiffs. On May 20, 1896, the appellants herein filed their answer, wherein they pleaded not guilty, the three, five, and ten years' statutes of limitation, and alleged title in themselves to the F. W. Huesmann survey, and that appellees claimed the west boundary line of the King to be 700 varas west of its real location. Upon the trial of the case, all the testimony, except upon the pleas of limitation, was directed to the establishment of the west line of the King survey and the east line of the Huesmann. The King being the elder survey, the real controversy as to boundary was the correct location of that survey. The case was tried before a jury, and resulted in a judgment in favor of the plaintiffs, from which defendants have appealed.

As we have determined that it is our duty to reverse the judgment because the evidence upon the issue of limitation is insufficient to support it, we deem it improper for us to go into and discuss the testimony upon the question of boundary further than it may be necessary to an understanding of our holdings upon assignments of error relating to the admission and exclusion of evidence offered upon that issue. Prior to the trial, the following agreement in writing was made by the parties, viz.: "It is agreed by the plaintiffs and defendants that the evidence for the respective parties, as shown by the statement of facts as same appears in the record of court of civil appeals for the Fourth supreme judicial district of Texas, in the case of Jackson vs. Ben T. Cable et al., numbered 525, in 45th judicial district court of Bexar county, Texas, may be offered in evidence at the trial of this cause, subject, however, to all objections which may be urged against said testimony, were the witnesses on the stand on the trial of this cause, either side having the right to introduce any other testimony they, or either of them, may see fit, but not to contradict the testimony given in said statement of facts by their own witnesses." Upon the trial, appellees offered to prove by the witness W. M. Locke that in the month of April, 1893,—since the trial of the case referred to in the agreement,—he had surveyed the Clark L. Owen survey No. 73, and gone in his survey west 3,270 varas from the northeast corner of the Owen as he found it, and found at 10 varas of the north line of the Owen, on the west line of the McCamley, the stumps of the original two mesquite trees called for at the northwest corner of the Clark L. Owen survey. Thereupon appellants read from the transcript referred to...