Callahan v. Staples

• Decision Date: 11 March 1942
• Docket Number: No. 2397-7787.,2397-7787.
• Citation: 161 S.W.2d 489
• Parties: CALLAHAN et al. v. STAPLES et al.
• Court: Texas Supreme Court

Page 489

161 S.W.2d 489

CALLAHAN et al. v. STAPLES et al.

No. 2397-7787.

Commission of Appeals of Texas, Section A.

March 11, 1942.

Rehearing Denied April 29, 1942.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action of trespass to try title to land and recover damages by Lizzie Havre against W. E. Callahan, Sam A. Robertson and another, in which defendants filed a cross-action against plaintiff, Merrill W. Staples and others to recover title to and possession of land. Judgment for named defendants, and from a judgment dismissing a motion by cross-defendants Staples and another for a new trial, movants appealed to the Court of Civil Appeals, which reversed the judgment and remanded the cause, 138 S.W.2d 206, and defendant Callahan and Mrs. Maria Robertson, who was substituted for defendant Robertson as a party after his death, bring error.

Judgment of Court of Civil Appeals affirmed.

Kleberg, Eckhardt & Lowe, of Corpus Christi, and Davenport & Ransome, of Brownsville, for appellants.

Seabury, Taylor & Wagner, of Brownsville, for appellees.

Marcellus G. Eckhardt, Jr., of Corpus Christi, amicus curiae.

HARVEY, Commissioner.

This is an appeal from an order of the District Court of Cameron County, 103rd Judicial District, dismissing, for want of jurisdiction, a motion for new trial made under the provisions of Article 2236 of the Revised Statutes. The relevant facts are substantially as follows:

On June 9, 1928, W. E. Callahan and Sam A. Robertson recovered a judgment, in said district court, against Merrill W. Staples, for the recovery of the title to and right of possession of a large portion of Padre Island in the Gulf of Mexico. A portion of the land sued for lies within the boundaries of Cameron County. Staples, among many other defendants in said suit, was duly served with citation by publication, did not appear or answer in the suit, and was represented only by an attorney ad litem appointed by the court. On June 6, 1930, Staples and Joseph G. Bowen (the latter being a purchaser pendente lite from Staples) filed a joint motion for new trial, which motion conformed to the provisions of Article 2236 of the Revised Statutes. On the same day, the movants, Staples and Bowen, caused citation to issue to the respondents, Callahan and Robertson, commanding them to appear and answer said motion at the next regular term of said court, which began July 21, 1930. Both respondents duly appeared and filed their written answer consisting of a general exception and a general denial. Nothing else was done in the case until August 25, 1931, when the deposition of Staples, taken in pursuance of a written agreement of the attorneys of the respondents, was filed by the movants. Nothing further was done in the case until October 24, 1938, when Staples and Mrs. Joseph G. Bowen duly suggested the death of Joseph G. Bowen, and Mrs. Bowen was duly substituted as a movant in his stead. At the same time, the death of Sam A. Robertson was suggested by Staples and Mrs. Bowen, and scire facias was duly issued requiring his widow, Mrs. Maria Robertson, to answer said motion at the regular December term, 1938, of said court. This term opened December 19, and closed the 11th day of February, 1939. On December 20, 1938, Mrs. Robertson, acting through an attorney who represented her alone, responded to the writ of scire facias by filing her written answer consisting of a general exception and general denial. On the same day, movants Staples and Mrs. Bowen, under leave of the court, filed an amended motion for new trial, and the court set the amended motion for hearing on December 23, 1938. On December 22, the attorney for movants learned that Judge Kent, the regular judge of said court, would not be available before December 31, 1938. He thereupon procured the consent of respondents' attorneys to a resetting of the hearing of said motion for the last-mentioned date. On December 30, the respondents filed a motion to dismiss said amended motion for new trial, on the ground that the court had no jurisdiction to determine same, first, because the original motion was not determined during the July term, 1930, of said court, and, second, because some eight years elapsed — between the date the said original motion for new trial was filed (June 6, 1930) and October 24, 1938 — without any action at all being taken in the case by the movants, except to file the deposition of Staples on August 25, 1931. On December 31, 1938, Judge Kent being on the bench, the Court overruled this motion to dismiss. Thereafter on the same day, Judge Kent granted the movants' amended motion for new trial, and set aside the judgment which Callahan and Robertson had recovered against Staples on June 9, 1928. At the expiration of December 31, 1938 the term of office of Judge Kent expired, and on January 1, 1939 Judge Graham succeeded him as the regular judge of said court. Thereafter, on January 17th, the respondents Callahan and Mrs. Robertson filed a motion to set aside the order made by Judge Kent on December 31, granting movants' motion for new trial. One of the grounds alleged was that prior to October 24, 1938, the motion had been discontinued by operation of law, which had effect to deprive the court of jurisdiction of the motion. On February 3, 1939, Judge Graham duly heard this motion. Staples and Mrs. Bowen as well as Callahan and Mrs. Robertson appeared and participated in such hearing, through their respective attorneys. At this hearing the evidence showed without dispute that after the day the motion for new trial was filed (June 6, 1930) to October 24, 1938, no action in the case was taken by movants, except to file the deposition of Staples on August 25, 1931. The court took no action at all during said period. Upon this undisputed evidence the court, acting through Judge Graham, on February 8, 1939, set aside the order of December 31, 1938, granting the Staples-Bowen motion for new trial. The effect of this order of February 8, 1939, was to return the Staples-Bowen motion for new trial to the status of "business undisposed of." Thereupon, on the same day, the...