Dunnagan v. East Texas Colonization & Development Co.

• Decision Date: 18 October 1917
• Docket Number: (No. 261.)
• Citation: Dunnagan v. East Texas Colonization & Development Co., 198 S.W. 357 (Tex. App. 1917)
• Parties: DUNNAGAN v. EAST TEXAS COLONIZATION & DEVELOPMENT CO. et al.
• Court: Texas Court of Appeals

198 S.W. 357

DUNNAGAN v. EAST TEXAS COLONIZATION & DEVELOPMENT CO. et al.

(No. 261.)

Court of Civil Appeals of Texas. Beaumont.

October 18, 1917.

Rehearing Denied November 14, 1917.

Error to District Court, Angelina County; L. D. Guinn, Judge.

Suit by J. A. Dunnagan against the East Texas Colonization & Development Company, W. J. Patterson, and others. Judgment for defendants, and plaintiff brings error, and defendants move to dismiss the writ. Motion sustained and writ dismissed.

T. H. Stone and H. E. Stephenson, both of Houston, for plaintiff in error. Mantooth & Collins, of Lufkin, and Blount & Strong, of Nacogdoches, for defendants in error.

KING, J.

This suit was instituted by plaintiff in error, J. A. Dunnagan, in the district court of Angelina county against W. J. Patterson, Hooks & Hayter, composed of S. B. Hayter and T. M. Hooks, East Texas Colonization & Development Company, the Angelina Orchard Company, and Rosabella G. Henning, in the form of trespass to try title to 1,874 acres of land. In due time the Angelina County Lumber Company made itself a party defendant under article 7735, Vernon's Sayles' Texas Civil Statutes 1914, which provides:

"When a party is sued for lands, the real owner or warrantor may make himself, or may be made, a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action"

—and defended in behalf of its vendees, contesting the claim of plaintiff in error to the land. The case was submitted to a jury upon special issues, and judgment was rendered December 7, 1915, in favor of all of the defendants, including the Angelina County Lumber Company. In due time the plaintiff in error filed his motion for a new trial, which was overruled. On December 6, 1916, plaintiff in error filed his application for writ of error to this court. The application states the names and residences of all parties to the suit and the judgment, with the exception of Rosabella G. Henning and the Angelina County Lumber Company, who are not made parties defendant in the application. The transcript was filed in this court on the 27th day of March, 1917. On the 30th day of May, 1917, a motion was filed by the defendants in error, who were made parties by plaintiff in error in his application, to dismiss this appeal because plaintiff in error did not in his application state the names and residences of all the parties adversely interested to him in this: That said petition for writ of error failed to state the name and residence of Rosabella G. Henning, a defendant in said cause, and failed to state the name and residence of the Angelina County Lumber Company, a defendant in said cause, alleging that said parties defendant were adversely interested in this cause to plaintiff in error. Plaintiff in error contests this motion upon the ground that it was not filed as provided by rules 8 and 9 of the Court of Civil Appeals (142 S. W. xi), rule 8 requiring:

"All motions relating to informalities in the manner of bringing a case into the court shall be filed within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered waived if it can be waived by the party" —rule 9 requiring:

"Motions to dismiss for want of jurisdiction to try the case and for such defects as defeat jurisdiction in the particular case and cannot be waived, shall also be made and filed at the same time; provided, however, if made afterwards they may be entertained by the court upon such terms as the court may deem just and proper."

The only question to be determined is whether the defects pointed out in the motion to dismiss defeat the jurisdiction of this court and under the law not subject to waiver. From the pleadings in the case and from the judgment, it appears clearly that Rosabella G. Henning and the Angelina County Lumber Company are adversely interested to plaintiff in error and should therefore have been made parties in the application for writ of error and their names and residences should have been given as provided by statute. Rosabella G. Henning is one of the original defendants in the suit, and no judgment was taken against her. The Angelina County Lumber Company, defending on behalf of its vendees, admits its liability to them in case plaintiff in error should show title to the land, but stoutly contests the claim of plaintiff in error to the land. The judgment concludes as follows:

"Wherefore it is ordered and adjudged by the court that the plaintiff, J. A. Dunnagan, take nothing by his suit herein against the defendants, or any of them, to wit, East Texas Colonization & Development Company,...