Fain v. McCain

• Court: Texas Court of Appeals
• Writing for the Court: Harper
• Citation: Fain v. McCain, 199 S.W. 889 (Tex. App. 1917)
• Decision Date: 06 December 1917
• Docket Number: (No. 759.)
• Parties: FAIN et al. v. McCAIN, Clerk of District Court.

199 S.W. 889

FAIN et al. v. McCAIN, Clerk of District Court.

(No. 759.)

Court of Civil Appeals of Texas. El Paso.

December 6, 1917.

Rehearing Denied January 3, 1918.

Appeal from District Court, Anderson County; John S. Prince, Judge.

Suit by J. A. Fain and others against E. T. McCain, Clerk of District Court. Suit dismissed, and plaintiffs appeal. Affirmed.

W. R. Petty, of Palestine, for appellants. Thos. B. Greenwood, of Palestine, for appellee.

HARPER. C. J.

This suit was brought by appellants against appellee as clerk of the district court of Anderson county to compel, by mandamus, the issuance of a writ of possession in favor of appellants for 12.01 acres of land, which had been adjudged to appellants, subject to the right of an improver in good faith to retain same by payment of the value of the land. The court sustained six special exceptions to appellants' original petition, and appellants not seeking to amend, the suit was dismissed, and to reverse the judgment of dismissal this appeal is prosecuted.

The first assignment is:

"The court erred in sustaining defendant's exceptions from 1 to 5, inclusive, to plaintiff's original petition, as shown by the judgment in this cause."

The second assignment is that it was error to sustain appellee's sixth exception to the petition which reads:

"Defendant excepts to plaintiff's original petition because the facts therein stated negative any cause of action in favor of plaintiff against defendant, and affirmatively show that plaintiffs are not entitled to the mandamus prayed for."

The petition sought by this appeal to be held sufficient reveals that J. A. Fain brought suit against T. A. Nelms in trespass to try title to 12 acres of land, and secured a judgment for the land and defendant for the value of his improvements. The judgment is dated May 8, 1911. The judgment further provides that plaintiff may pay the value of the improvements within one year and have his writ of possession, and, further, that in case plaintiff did not pay the value of the improvements, then the defendant had 6 months after the one year to pay $125 of the value of the land and take title, etc. The cause was appealed by filing cost bond only (opinion affirming judgment, 156 S. W. 281), and affirmed March 27, 1913. Application for writ of error was overruled by Supreme Court October 22, 1913, 159 S. W. xxiii, and that W. H. Young, on April 17, 1915, for the heirs and legal representatives of said Nelms, paid to the clerk the said sum of $125.

It will be noted from the above statement that the money was paid within 18 months from the final order of the Supreme Court denying writ of error, but not within 18 months of the date of the judgment of district court. The controlling question is: Was the appeal bond filed, since it provided only for costs, sufficient to supersede the judgment so as to permit appellees to pay the value of the land at the date they did, instead of within 18 months of the date of the trial court's judgment?

The judgment conforms to the provisions of articles 7764 and 7765, Vernon's Sayles' Statutes of Texas:

"Art. 7764: In any action of trespass to try title, when the lands or tenements have been adjudged to the plaintiff, and the estimated value of the improvements in excess of the value of the use and occupation and damages has been adjudged to the defendant, no writ of possession shall be issued for the term of one year after the date of the judgment, unless the plaintiff shall pay...