Donias v. Quintero

• Decision Date: 23 November 1949
• Docket Number: No. 4671,4671
• Parties: DONIAS v. QUINTERO et al.
• Court: Texas Court of Appeals

Page 252

227 S.W.2d 252

DONIAS v. QUINTERO et al.

No. 4671.

Court of Civil Appeals of Texas, El Paso.

Nov. 23, 1949.

Albert A. Pena and Chas. T. Haltom, San Antonio, for appellant.

J. R. Cade and Frank Alvarado, San Antonio, for appellees.

McGILL, Justice.

This is an appeal from a judgment of the 45th Judicial District Court of Bexar County. Appellant was plaintiff in the trial court had appellees were the original defendants. Plaintiff's first amended petition on which the case was tried was filed August 17, 1948 in lieu of his original petition filed April 15, 1948. It contained the usual allegations of a suit in trespass to try title to an undivided one-half interest of the north 50 feet of lots 173 and 174 in Block 6 in New City Block 6389 of the City of San Antonio. The death of defendant Juanita Diaz Quintero was suggested and the suit continued by her husband, Enemencio Quintero and her sons, Jose Benavides Diaz, Guillermo Benavides Diaz and Santiago B. Diaz, these being her sole heirs, as defendants. On November 6, 1948, defendants filed their first amended answer and petition in cross action, which contained a plea of not guilty, and a general denial, and by which they sought to recover title and possession of the property and to quiet title thereto; also to require plaintiff to account for rents he had collected from the property. Trial was to the court without a jury. On the 7th day of March, 1949, the court rendered judgment awarding title and possession of the property to the three sons of Juanita Diaz Quintero, her husband having waived his interest therein in their favor, and ordered plaintiff to pay the sons $106.38, this being the amount of rent he had collected from the property. Plaintiff excepted and has perfected his appeal.

The appeal is before us without any statement of facts. However a resume of the proceeding reflected by the transcript and a statement of some facts found by the trial court is essential to an understanding of the points presented.

On July 29, 1946, Irene F. Donias as plaintiff filed her petition in cause No. F-34,755 in the 45th Judicial District Court of Bexar County, in which Pedro Donias, appellant here, was defendant. Plaintiff sought a divorce from defendant. She alleged: 'That community property consists of household goods of the value of $100.00. Also the North 50 ft. of lots 173 and 174 in Block 6 N. C. B. 6389 fronting 50 ft. on Daly Street, being 50 ft. by 50 ft. and known as 108 Daly Street, San Antonio, Bexar County, Texas, of the value of $1,000.00. Plaintiff asks she be awarded this community property as she has worked hard to pay for same and also has kept the taxes through her own efforts.'

On September 3, 1946 the court rendered judgment granting plaintiff a divorce from defendant and restoring to her her maiden name of Irene Flores. The judgment recites: 'Plaintiff is hereby awarded real estate known as; 108 Daly St., San Antonio, Texas and more fully described as; lot N. 50 ft. of 173 and 174; Block 6 N. C. B. 6389. * * *'

On November 17, 1947, appellant as plaintiff filed his original petition in cause No. F-43,940 in the 37th Judical District Court of Bexar County, in which Irene Flores was named defendant. He alleged the granting of a divorce and the awarding of the property in question to defendant in cause No. F-34,755; that he was served with citation in said cause in Los Angeles, Calif., and employed an attorney there to protect his rights in the divorce suit, but that the attorney overlooked doing so and he did not know that his former wife had been awarded all of the community property. He prayed that he be granted judgment for one-half of such property. Defendant filed her original answer to this petition on December 30, 1947. This consisted of a general denial. On February 16, 1948, this cause was transferred to the 45th Judicial District Court of Bexar County. February 24, 1948, defendant filed her first amended original answer and cross action in cause No. F-43,940. This consisted of a general denial and allegation that the property described in her original petition in the divorce case was not in fact community property, but was her separate property. She prayed that plaintiff take nothing, and in the alternative that if the property was declared to be community property she be given a life estate therein, and that plaintiff take only a half undivided interest in the remainder. On March 20, 1948, appellant as plaintiff filed his first amended petition in cause No. F-43,940 in lieu of his original petition filed therein on November 17, 1947, in which he set out the petition in cause No. F-34,755, alleged that he was served with citation in such cause in Los Angeles, California, on August 7, 1946 and employed an attorney to represent him and protect his rights therein, but such attorney overlooked doing so, and that he did not know defendant was claiming full title to the property until he returned to San Antonio in the fall of 1947. He further alleged that it was the intention of the court in the divorce case to award only the use of the real estate to plaintiff, and if not, that the order awarding her the fee of said land was contrary to the Statute. He prayed that such order be changed and that the land be partitioned between plaintiff and defendant. On March 29, 1948, the court rendered judgment in cause No. F-43,940 that '* * * the plaintiff, Pete Donias have, and he is hereby granted, judgment against the defendant. Irene Flores; and that the award set out in cause No. F-34,755, styled Irene F. Donias vs. Pedro Donias, be, and the same is, hereby changed so that from henceforth the plaintiff and defendant herein, each, shall have an undivided one-half interest in the real estate, therein, and herein, mentioned, to-wit: The north fifty (50) feet of lots 173 and 174, in Block six (6), New City Block 5389, fronting 50 feet on Daly Street, and being 50 feet by 50 feet, and known as 108 Daly Street, in San Antonio, Bexar County, Texas.'

The present suit followed. On November 15, 1948, appellant filed a motion in cause No. F-43,940 to correct the judgment rendered therein on March 29, 1948, and to change said judgment so that the award of the real estate to Irene Flores in the divorce suit be set aside and plaintiff be held to have had title since the date of the filing of the divorce suit on July 29, 1946. The grounds of the motion were substantially the same as those set up in his first amended petition filed on March 20, 1948. He also alleged that a deed dated February 23, 1948, by which Irene Flores purported to convey said property to Mrs. Juanita Diaz Quintero was filed for record March 29, 1948, and that he had no notice of the existence of such deed prior to the rendition of the judgment of March 29, 1948. On December 1, 1948, appellees filed their petition in intervention in cause No. F-43,940 in which among other allegations they alleged that Juanita Diaz Quintero was an innocent purchaser for value of said property from Irene Flores. By agreement of the parties by order of the court on January 21, 1949, cause No. F-43,940 was consolidated with cause No. F-46,359 (this cause in the trial court). The judgment rendered by denying all relief not granted, denied the motion to correct judgment filed by appellant in cause No. F-43,940.

The court found as a fact that there was no oral testimony upon the trial whereby the judgment of March 7, 1949 was rendered; that there was no lis pendens notice filed in cause No. F-43,940; that Irene Flores by warranty deed on February 23, 1938 conveyed the land in dispute to Juanita Diaz Quintero as her separate property; that the stated consideration in such deed was one dollar and other valuable considerations, and that the deed shows cancelled documentary stamps for $1.10; that Juanita Diaz Quintero was an innocent purchaser of the land in controversy; that he took judicial notice of the pleadings, the judgments and the judgment records in the three cases, namely, No. F-34,755, No. F-43,940 and No. F-46,359. He concluded that as a matter of law the divorce decree in cause No. F-34,755 passed title to the property to Irene Donias (Flores) and that she conveyed such title to Juanita Diaz Quintero; that the decree in cause No. F-34,755 was not ambiguous and the decree entered in cause No. F-43,940 was not ambiguous, and did not disturb the judgment entered in cause No. F-34,755, and could not affect the sale of the property made prior to March 29, 1948; that it was unnecessary for him to rule on any point and he did not...