Degetau v. Mayer

• Court: Court of Appeals of Texas
• Writing for the Court: Moursund
• Citation: 145 S.W. 1054
• Parties: DEGETAU et al. v. MAYER et al.<SMALL><SUP>†</SUP></SMALL&gt
• Decision Date: 13 March 1912

145 S.W. 1054 DEGETAU et al.
v.
MAYER et al.^† Court of Civil Appeals of Texas. San Antonio. March 13, 1912. Rehearing Denied April 10, 1912.

Error from District Court, El Paso County; A. M. Walthall, Judge.

Action by B. Degetau and others against Sara Mayer and others, in which defendants filed a cross-action. Judgment for defendants on their cross-action, and plaintiffs bring error. Affirmed.

Patterson, Buckler & Woodson, of El Paso, for plaintiffs in error. Z. L. Cobb, of El Paso, for defendants in error.

MOURSUND, J.

The plaintiffs Degetau and others sued, in the district court, Sara Mayer and her three children and Z. L. Cobb to subject nine different pieces of land in El Paso county to the payment of certain notes, which were fully described, and which had been executed by Richard L. Mayer, deceased, who was the husband of Sara Mayer and the father of the three children, and sued, also, Z. L. Cobb, who claimed an interest in said land under the Mayers. It was alleged in the petition that Richard L.

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Mayer had, on December 27, 1894, executed and delivered to Millard Patterson, as trustee, a certain deed of trust upon said nine tracts of land to secure the payment of the notes described; and the book and page where such deed of trust was recorded was set out. Such suit was filed June 18, 1910. All of the defendants were cited by publication, except Cobb, and all, except Cobb and Sara Mayer, were minors. An affidavit for citation by publication was made by one of the attorneys for the plaintiffs, in which one of the minor defendants was named as Gustav Mayer, whereas he was sued as Alfred Gustav Mayer, and the citation by publication, which was issued, gave the name of the minor defendant as Alfred Gustav Mayer.

The plaintiffs below filed an amended petition on April 11, 1911, and on April 18, 1911, the defendants Sara Mayer and Z. L. Cobb filed their first amended original answer and cross-action in said case, and the minor defendants filed an answer through an attorney appointed by the court to represent them. The cross-action, filed by Sara Mayer and Z. L. Cobb, reads as follows: "And now come the said Sara Mayer, residing in the empire of Germany, and Zach Lamar Cobb, a resident of El Paso county, Texas, and for counteraction against the plaintiffs B. Degetau, Emilia A. Kuck and husband, Otto Kuck, and Charles Ketelsen, all nonresidents of the state of Texas, respectfully represent and show to the court: That said Sara Mayer owns the fee-simple title of all that certain land known and described as surveys Nos. 52, 65, 77, and 85, on the Island—that is, on the south side of the present channel of the Rio Grande river, in the San Elizario grant, El Paso county, Texas—and that the said Zach Lamar Cobb owns the fee-simple title of all those certain tracts of land known and described as surveys Nos. 110 and 114, on the Island, which tracts of land are particularly described in plaintiffs' petition. That the said Sara Mayer and Zach Lamar Cobb own said respective lands in fee simple, under and by virtue of the purchase of the same by them from Archibald Dixon, Jr., administrator of the estate of Richard L. Mayer, deceased, acting under due process of law, and under the direction and approval of the probate court of El Paso county, Texas, in all things as required by law. That the said B. Degetau, Emilia A. Kuck and husband, Otto Kuck, and Charles Ketelsen assert a claim and interest in said land, and a lien upon the same, under an alleged indebtedness of the said Richard L. Mayer, deceased, and an alleged deed of trust, which they claim was executed by the said Richard L. Mayer, deceased, to secure the said indebtedness, all of which is fully alleged in their petition, and that said claim so made by the plaintiffs constitutes a cloud upon the title of the defendants. Wherefore the said defendants Sara Mayer and Zach Lamar Cobb pray that they have judgment against the plaintiffs B. Degetau, Emilia A. Kuck, and husband, Otto Kuck, and Charles Ketelsen, removing said cloud from their title to their respective tracts of land, for costs of suit, and for such other and further relief as the court deems proper to grant." No citation was issued on the cross-action. The six tracts of land described therein were six of the nine tracts described in plaintiffs' petition.

The case was set for trial on the 19th day of April, 1911. The further proceedings are recited in the judgment, from which we copy as follows: "Be it remembered that on the 19th day of April, A. D. 1911, the above styled and numbered...