Dannelly v. Jeffrey

• Decision Date: 03 March 1926
• Docket Number: (No. 6969.)
• Citation: Dannelly v. Jeffrey, 283 S.W. 351 (Tex. App. 1926)
• Parties: DANNELLY v. JEFFREY et al.
• Court: Texas Court of Appeals

283 S.W. 351

DANNELLY v.JEFFREY et al.

(No. 6969.)

Court of Civil Appeals of Texas. Austin.

March 3, 1926.

Appeal from District Court, Caldwell County; J. B. Price, Judge.

Suit by Lydia Dannelly against W. F. Jeffrey and others.From a judgment for defendants, plaintiff appeals.Reversed, and cause dismissed.

E. C. Overall, of Luling, and White, Wilcox, Graves & Taylor, of Austin, for appellant.

McCLENDON, C. J.

On March 4, 1925, appellant executed an instrument conveying to appellee Jeffrey a one-half undivided interest in the royalties and a one-sixteenth undivided interest in the oil and other minerals pertaining to a tract of land in Caldwell county, covering which appellant had previously granted a "commercial" oil lease.On March 5, 1925, Jeffrey conveyed to appelleeF. C. Gideon a half interest in his holdings under this instrument.On March 17, 1925, appellant brought this suit against Jeffrey and Gideon, seeking to cancel these instruments on the ground that the execution of the former was procured by fraud.Shortly before court convened on April 20, 1925, appellant's attorney stated to the judge that he had a casehe wished to dismiss, and would like to have this done as soon as court convened in order that he might return to his home in Austin.The judge asked if an answer had been filed, and, upon being told that there had, informed appellant's attorney that the request would be granted if agreeable to defendants' attorneys, but if objected to the case would have to be taken up in its order on the docket.When court convened appellees' attorneys stated to the court that they would oppose the motion, and the court announced that the case would have to be disposed of in its regular order.Thereupon appellant's attorney proceeded to read his motion to dismiss, which had theretofore been filed, and was again told by the court"that the matter would not be heard at this time, and would not be taken up for disposition until reached on regular call."To quote from the judge's qualification of appellant's bill of exceptions:

"Said cause was not presented to or in any way considered by the court, at that time, except to find out if the case would go off the docket without trial or if it would have to be set down for hearing when reached on the docket."

Up to that time appellees had filed no pleadings seeking affirmative relief; but thereafter, and prior to action on the motion, appellee Jeffrey filed an amended answer in which he admitted the execution of the instrument of March 4, 1925, denied any fraud, and concluded with a prayer that plaintiff take nothing, "that the cloud upon his title caused by the filing of this suit be removed, and that he have judgment against the plaintiff quieting defendants' title," and for costs, and other relief general and special, legal and equitable.Appellee Gideon also filed an amended answer in which he claimed to be a bona fide purchaser from Jeffrey without notice of the alleged fraud.This answer concluded with a prayer in substantially the same language as the prayer in Jeffrey's amended answer....