Cannon v. Hemphill

• Decision Date: 01 January 1851
• Citation: 7 Tex. 184
• Parties: CANNON AND OTHERS v. HEMPHILL AND OTHERS.
• Court: Texas Supreme Court

7 Tex. 184

CANNON AND OTHERS

v.HEMPHILL AND OTHERS.

Supreme Court of Texas.

1851.

It is not necessary that a decree of the District Court should be signed by the presiding judge.

Where a consent decree occurred in the transcript of the papers on file and proceedings in a cause, it was presumed that the decree was entered upon the minutes of the court, and not merely an agreement which had been filed and had not been carried into a decree.

Where the decree of the District Court purported to have been made by the consent of the parties, but was signed by only one plaintiff and one defendant, it was held, after two years, that the decree must be construed to have been entered by consent of all the parties, and that the parties who did not sign the agreement for the decree were estopped, in the absence of an allegation of fraud, from denying that they had assented to the decree; and this, too, notwithstanding those parties were minors, who had been represented by their next friend. (Note 22.)

Where a judgment or decree of the District Court, made after the court has obtained jurisdiction of the parties, purports to have been entered by consent, the parties and those claiming under them are estopped, in the absence of an allegation of fraud, from denying that they consented to it.

The character of a judgment must be tested by its operation on the objects sought to be attained by the proceeding. If the cause be determined on its merits; if the rights controverted between the parties be settled,--the judgment will be final, although ulterior proceedings to carry the judgment into effect may be required. (Note 23.)

Quere whether an interlocutory decree, which adjudged certain proprietary rights to one of the parties, can be vacated and annulled at a subsequent term of the same court.

Where, in a controversy respecting the title to a league of land, a decree was entered by consent, whereby the land was divided among the parties, share and share alike, in quantity and quality, and commissioners were appointed to make the partition, it was held that the decree was final, and not interlocutory.

Allegations which, in substance, amount to the statement that, from reposing confidence in others, the party had mistaken the rights of his wife, are not sufficient to set aside, especially after the lapse of more than two years, a solemn judgment of the court, entered at his own suggestion.

Quere as to the principle in relation to relief from mistakes of law.

The distinctions of the common law as to the effect of the joinder of husband and wife as coplaintiffs, &c., and the grounds on which they proceed, are unknown to our system of jurisprudence. The right of the wife in her own property cannot be affected, under our laws, by the circumstance of the joinder of the husband in a suit for its recovery. Let it be recovered by whom it may, it remains, unchanged, the absolute property of the wife. (Note 24.)

The statute (art. 2415) constitutes the husband the agent or attorney of the wife to bring suit for the recovery of any of her effects, either in his own name or jointly with her; and his acts in this capacity, done in good faith, must be binding and conclusive upon his principal.

If the husband were incompetent, or were endangering the rights of the wife, by negligence, in a suit instituted by him for the recovery of her effects, the court would, doubtless, on proper representations, interfere for her protection; or, if he were guilty of fraud or collusion, she might impeach the decree vitiated by such fraud. But the husband should then be made a defendant, and not a coplaintiff with the wife.

Infants may sue by their next friend, and are as much bound by the judgment and decree as if they were adults; but if the next friend does not lay the case properly before the court, by collusion, neglect, or mistake, a new suit may be brought on behalf of the infant. (Note 25.)

No cases have been found where an infant plaintiff was allowed a day in court, after coming of age, to show cause against the decree, except cases of partition; and quere whether infants can claim a day after coming of age, even in cases of partition, in our practice.

Quere where the father received a grant as a colonist in 1831, and died in 1832, leaving heirs who were minors, and who abandoned the country before the land had been completely cultivated. Quere, also, where some of the minor heirs remained and performed the condition of cultivation, did the performance of the condition of cultivation, in such a case, inure to the benefit of all the heirs, or did it inure to the exclusive benefit of those who remained?

MOTION TO REFORM THE JUDGMENT.

Under our system of procedure, all matters touching the cause of action which might, under our former jurisprudence, have been pleaded in reconvention, or which may, in chancery practice, be set up in a cross-bill, may be alleged in the answer by way of defense and for redress. (Note 26.)

Where one party brings a suit to vacate and annul a former decree, the other party may pray for a revival of the same and for process to carry it into execution.

Quere whether the 122d section of the act to regulate proceedings in the District Courts, (art. 776,) respecting costs of suits, is confined to actions at law, or extends also to cases which, under a separate or exclusive chancery jurisdiction, would have been cognizable in equity.

The 122d section of the act to regulate proceedings in the District Courts, (art. 776,) respecting the cost of suits, extends to those cases only in which the entire judgment is given for the plaintiff or for the defendant, and does not include cases in which judgment as to a portion of the matters in controversy is given for one of the parties, and against him as to the other matters.

The 122d section of the act to regulate proceedings in the District Courts, (art. 776,) which relates to costs of suits, does apply to the costs of proceedings in the Supreme Court.

This section of the Constitution, (sec. 24, art. 7,) which prescribes that a law shall have but one object, which shall be expressed in the title, is not merely directory, but mandatory. (Note 27.)

Appeal from Bastrop. Mozea Rosseau removed to Texas, in 1828, accompanied by his reputed lawful wife, Sarah Rosseau, and their three children, viz, Mary, who subsequently married one Welchmeyer, but at the commencement of this suit was intermarried with Wm. A. Hemphill, one of the appellees; and James and Lavinia Rosseau. He was also accompanied by a woman named Polly Childress, who lived in the same house with his family.

The wife Sarah died in 1829; and the surviving husband continued to cohabit with the woman Polly, and treat her as his wife, and, in December, 1831, was united to her in the bonds of matrimony. There was no issue of the marriage; but, previously, the woman Polly had borne two children--one prior to the death of the wife Sarah, and the other five or six months subsequently, both of whom were acknowledged by the said Mozea as his children, and, after the intermarriage of the parents, were baptized as such. These children were named Maria, who, previous to the commencement of this suit, intermarried with Wm. R. Cannon, and Margaret, who intermarried with C. R. Perry.

In the month of March, 1831, the said Mozea Rosseau applied, as a colonist and head of a family, for a league of land. The agent of the empresario certified that he was a married man, and in the month of April title of possession was issued.

In the year 1832, Mozea Rosseau died, leaving as survivor the three children above named, of his first wife, and the second wife and her two children, Maria and Margaret. Two of his children by his first wife, viz, James and Lavinia, being minors, left the country on the death of their father, and in the same year, and did not return until the spring of 1845--the said Lavinia being then, and at the commencement of this suit, still a minor. Mary, one of the children by the first wife, the second wife and her two children, continued to reside in the country.

Mary married one Welchmeyer, and subsequently intermarried with Wm. A. Hemphill, one of the appellees in this case. The surviving wife of Rosseau intermarried with James Smith, who administered on the estate of the deceased Rosseau; and on his application, in August, 1838, the Probate Court of Bastrop county (where the succession was opened) decreed and adjudged to his wife one half of all the property which had been inventoried as belonging to the said succession; and in the proceedings which were then had, one David Holderman was appointed as guardian of the heirs, James and Lavinia; and William Pinckney Hill was appointed curator ad litem of Welchmeyer and his wife Mary. The said Holderman and Hill appeared in court by virtue of their said appointments, and Holderman consented to the partition, but not to the manner in which it was made.

In the month of November, 1841, the said Mary Welchmeyer and James and Lavinia Rosseau, the two latter of whom, being minors, appeared by their guardian and next friend, David Holderman, filed their petition in the District Court of Bastrop county, praying that all the orders and decrees of the County Court, in reference to the said division of the Rosseau estate be wholly set aside and held for naught, together with a prayer for other special and also general relief. In their petition they represented themselves to be the sole legal heirs of the deceased Rosseau; that James Smith, who had intermarried with the second wife and widow of their father, administered on his estate, and, among other property, took possession of his headright league of land; that the said Smith, in right of his wife, claimed one half of the said league of land, and, to give semblance of right to his claim, had petitioned the County Court (he being one of the associate judges of the said court, and presiding during all the proceedings which...