Evans v. Terrell

• Decision Date: 10 March 1906
• Citation: Evans v. Terrell, 95 S.W. 684 (Tex. App. 1906)
• Parties: EVANS et al. v. TERRELL et al.
• Court: Texas Court of Appeals

95 S.W. 684

EVANS et al. v. TERRELL et al.

Court of Civil Appeals of Texas.

March 10, 1906.

Appeal from District Court, Hill County; O. L. Lockett, Judge.

Action by J. W. Terrell and others against Lou Evans and others. From a judgment overruling a motion to set aside a judgment against defendants, they appeal. Reversed.

W. E. Shell, for appellants. Morrow & Smithdeal, for appellees.

TALBOT, J.

Appellees instituted this suit against appellants, alleging that on the 31st day of May, 1886, one Payton Keesee and one W. M. Evans, were joint owners of a tract of land situated in Hill county, Tex., containing 276½ acres, a part of the James Duncan survey; that on said day the said Evans and Keesee made partition and division of said tract of land, whereby the said Keesee acquired 100 acres off of the north end, and Evans 176½ acres off of the south end of said tract; that on December 31, 1901, Keesee sold 101 acres of land to one W. T. Terrell, and before that time a roadway had been established, by the said Keesee and Evans, between their respective tracts of land and with their acquiescence and consent the said roadway was established and agreed upon as a boundary line between the said two tracts of land; that at the time the said W. T. Terrell purchased the land from said Keesee, N. L. Evans and S. F. Evans were minors and were nonresidents of this state, but were represented by a guardian in the person of John Mayfield, who was in charge of the premises now owned by defendant Lou Evans; that at the time the said W. T. Terrell purchased the said land from Keesee the said John Mayfield was present, and the road between said tracts of land was pointed out by said Keesee, and by Mayfield and the county surveyor of Hill county, Tex., as the boundary line between the two said tracts, and recognized as such, and so represented to be to the said W. T. Terrell. That long before the purchase of said land by the said W. T. Terrell, the said roadway had been recognized and acquiesced in by all parties interested in said land, as establishing and marking the boundary line thereof. That subsequent to said purchase by the said W. T. Terrell, N. L. Evans, called "Lou" Evans, and one of the appellants, purchased the land, which was previously owned by the said N. L. and S. F. Evans, and that at the time of said purchase the said boundary line was marked, as aforesaid, and recognized as such boundary line. All of which was known to her, the said appellant N. L. Evans, and was acquiesced in and recognized by her; that said roadway was established and maintained for the purpose of giving means of ingress and egress to the owners of the said 100-acre tract of land, particularly the said W. T. Terrell. The appellees claimed title under the said W. T. Terrell, having purchased the land described in their petition from the said W. T. Terrell, and at that time the said roadway was then and there upon said premises, and was maintained and left open. That the land claimed and owned by appellees was used by them as a farm and home, and that the said roadway was the only means of ingress and egress to and from said farm, and the same was necessary to them in the matter of reaching the market with their products and going to the mill and church, etc. Appellees further allege that on the 15th day of July, 1904, appellants ejected the appellees and fenced up and obstructed the said road; that the said appellants have not sufficient property to make appellees secure for their damages, injuries, etc., and ask for restitution of the premises, and writ of injunction restraining the said appellants from interfering with and obstructing the said roadway. On February 23, 1905, the cause was tried in the district court of Hill county, Tex., the appellants not being present at said trial, either in person or by attorney, and a judgment was rendered on said date in favor of the appellees for the strip of land in controversy and perpetually enjoining the said appellants from interfering with the said strip and roadway, etc. On March 30th the appellants filed an amended motion to set aside said judgment, amending their motion which had been filed on the 24th day of February, 1905, and the same was by the court overruled, from which judgment the appellants have appealed to this court.

Appellants' motion to set aside the judgment of the district court, alleged in substance, that when this suit was filed they employed C. F. Greenwood, an attorney at law of Hill county, Tex., to represent them in said cause; that prior to the convening of said court the said Greenwood promised them that he would have said cause set down for trial for some particular day and notify them of said date; that said Greenwood wholly failed to notify them of the date said cause was set for trial, if indeed, it was ever set for any...