Crosby v. Di Palma

• Decision Date: 16 November 1911
• Citation: 141 S.W. 321
• Parties: CROSBY et al. v. DI PALMA et al.
• Court: Texas Court of Appeals

141 S.W. 321

CROSBY et al. v. DI PALMA et al.

Court of Civil Appeals of Texas. El Paso.

November 16, 1911.

On Rehearing, December 13, 1911.

Appeal from District Court, El Paso County; J. F. Woodson, Special Judge.

Action by Richard Di Palma and another against Josephine Crosby and others to vacate a judgment. From a judgment for plaintiffs, defendants appeal. Affirmed.

D. Storms, F. G. Morris, and Stanton & Weeks, for appellants. M. Nagle and McBroom & Scott, for appellees.

HIGGINS, J.

On July 28, 1887, Josiah F. Crosby, Bennett H. Davis, Charles Davis, Juan M. Ochoa, and William W. Williams filed suit in trespass to try title in district court of El Paso county against Richard Di Palma and about 30 other defendants for recovery of the Ascarate grant of land in said county, numbered 832 on docket of said court. The Ascarate grant conflicted with certain lands claimed by Di Palma in the Ysleta grant. The Di Palma lands consisted of 119 acres in the Rio Grande valley, known as tracts 1 to 6, and certain other tracts known as hill numbers, amounting to about 133 acres. Bennett H. Davis, one of the plaintiffs, was the attorney for plaintiffs, and Di Palma and some of the other defendants employed J. P. Hague to represent them. Davis and Hague were both residents of the city of El Paso. An answer was filed for Di Palma by his attorney in 1887, the exact nature of which is not disclosed, and on October 7, 1889, another answer was filed for him signed by Hague & Barnhart, attorneys. This answer did not purport to be an amendment, but was indorsed as an original answer and consisted of a general demurrer, plea of not guilty, limitation of three, five and ten years, suggestion of valuable improvements made in good faith, concluding with prayer as follows: "Wherefore, defendant prays that plaintiffs take nothing by this suit, that defendant be awarded a decree forever quieting him in his title to said land and property; but, if plaintiffs should recover of defendants any part of said property or premises, then this defendant prays judgment for the value of said improvements on said property, and for general, special, and equitable relief and for costs of suit." Demand for jury was made by defendants, and cause placed upon jury docket, where it was carried by the clerk until the rendition of final judgment, which was entered June 23, 1909, the validity of which judgment is attacked in the present case. B. H. Davis died in May, 1897, and Hague died about 1895. Orders of continuance in cause 832 were made in February and July, 1888, and no other orders or proceedings therein were had until May 21, 1900, when a motion was filed in behalf of plaintiffs alleging that all of the papers in the cause had been lost, and praying that the original petition be substituted, a certified copy thereof being attached. Notice thereof was served upon certain of the defendants in El Paso county, but no notice of any kind was served upon Di Palma. No order of substitution upon said motion was made at that time, nor any other order or proceeding of any kind was had in said cause until 1907, when the prosecution thereof was actively resumed by the plaintiffs, numerous suggestions of deaths being made, new parties being made, and many other proceedings and orders had therein, terminating in said judgment for the plaintiffs (appellants here) for a portion of the land involved, including that of Di Palma. On November 11, 1907, an order was entered substituting plaintiffs' original petition based on foregoing motion to substitute filed in 1900. In 1908 an amended supplemental petition was filed, alleging that the original petition had not been substituted as to some of the defendants and praying that it be now substituted as to them. In this petition Di Palma was alleged to be a resident of the city of Albuquerque, territory of New Mexico. Service of this as to Di Palma and numerous other defendants was had by publication, as in the case of an original petition. This amended supplemental petition merely prays for substitution of the petition and certain other papers therein named, and for general relief, but no order of substitution based thereon was made, and plaintiffs evidently treated same as sufficient upon which to base a judgment, as an attorney was appointed to defend the suit for the defendants therein named who were cited by publication, among them being Di Palma. At time of rendition of judgment there were 15 plaintiffs and 157 defendants, these additional parties having been brought into the suit upon suggestions of death, marriage, etc.

It appears that in El Paso county there is a bar committee which has control of the setting of cases, and that their action in these matters is usually acquiesced in and observed by the courts. Attorneys desiring to continue cases could do so through the medium of this committee. Plaintiffs' attorney, Davis, was chairman of this committee, and it is inferable from the evidence that the cause was continued from time to time up until death of Hague at the instance of Hague. At the time of the institution of the suit Di Palma and those under whom he claimed for many years had been in actual possession of portions of the land in controversy and had the same in a state of cultivation, and this continued up until the rendition of the judgment. Di Palma was a Catholic priest, holding the land in trust for the "Society of Jesus." He left the state in June, 1890, and since that date has resided in Colorado and New Mexico. On October 12, 1890, he conveyed the land to Joseph Marra, a Catholic priest, and who likewise holds same in trust for the "Society of Jesus." Di Palma testified that he employed Hague to defend the suit for him; that, when he left El Paso county, he went to Hague's office, and told him he was going away, and desired to be kept informed of anything done in the case, and his attorney promised to keep him posted on all changes, issues, and steps taken in his suit. He learned of Mr. Hague's death in 1909. He thinks he left all of his papers pertaining to the case in his attorney's hands. Marra knew about the suit at the time he conveyed the land to him. Marra asked him about the suit, and "I told him I would look after that. I never heard a word from Hague about this suit after I left here. Never wrote him, because I was expecting him to write me. I told him he could ascertain my whereabouts by inquiring of any of the Fathers here. I relied on Hague's promise to notify me if I was needed. It also appears from the testimony of Di Palma that Marra had been abroad for seven or eight years after the land was conveyed to him and away from the land most of the time. It also appears that during the entire pendency of cause 832 the valley land had been in actual possession of the associate priests of Di Palma and Marra, and in cultivation. With reference to the loss of the papers in 832, it appears from receipt in clerk's office that they were last in possession of Hague and Barnhart. When the priests in charge of the land learned of the judgment rendered in 832, the answer of Di Palma filed October 7, 1889, was found in possession of one of them, and was delivered to Mr. McBroom, one of the attorneys for plaintiffs in the present case.

After adjournment of the term of court in which the judgment was rendered, an abstracter informed one of the associate priests of Di Palma and Marra of said judgment, and in the early part of 1910 the present suit was filed by Di Palma and Marra against the plaintiffs in cause 832.

Without undertaking to state in detail the petition in the cause, it is sufficient to say that it was a suit to set aside the judgment in cause 832, based upon the following theories:

First. That the same as to Di Palma was based upon service of citation by publication and he was entitled to a new trial for good cause shown under article 1375, R. S. 1895.

Second. If he was not entitled to proceed under the provisions of said article, then the petition should be treated as a direct suit to set aside the judgment, and the same should be set aside, because (a) cause No. 832, by reason of inaction and failure to prosecute by plaintiffs, had been abandoned, whereby the cause had been discontinued and the court had lost jurisdiction of the subject-matter and parties, so that no valid judgment could be rendered. (b) If the suit had not been discontinued, then the judgment should be set aside because Di Palma had a meritorious defense, and the judgment was rendered through fraud, accident, or mistake without negligence upon plaintiffs' part.

Upon trial of the cause before a jury, the court gave a peremptory instruction for plaintiffs, and judgment was rendered in their favor.

Passing now to a consideration of the questions presented by this appeal, we are of the opinion that appellees were not entitled to the benefit of article 1375, giving to parties cited by publication the right to file a motion for new trial within two years after the rendition of the judgment. The recitals in the judgment in cause 832 as to service upon Di Palma are conflicting. It first recites that he had been personally served with citation, and had appeared by his attorney, James P. Hague. Thereafter it recites that he had been served with citation by publication, had made default, and an attorney had been appointed to represent him. Even if we give controlling effect to the last recital, the undisputed fact nevertheless remains that he did, in fact, appear in the cause and this gave the court jurisdiction over his person, which was not affected by the subsequent issuance of citation and service thereof by publication; provided the cause had not been discontinued. We think, though, the direct attack upon the judgment was well taken, and, under the undisputed facts, the court properly instructed the jury to find for appellees.

From statement of the case made, it will be noted that attorneys for both plain...