Farrias v. Delgado

• Decision Date: 05 March 1919
• Docket Number: (No. 6147.)
• Citation: 210 S.W. 610
• Parties: FARRIAS et al. v. DELGADO.
• Court: Texas Court of Appeals

210 S.W. 610

FARRIAS et al. v. DELGADO.

(No. 6147.)

Court of Civil Appeals of Texas. San Antonio.

March 5, 1919.

Rehearing Denied April 2, 1919.

Appeal from District Court, Atascosa County; Covey C. Thomas, Judge.

Suit for partition by Maria Louisa Farrias and others against Juan Delgado. Judgment for plaintiffs. From orders at a subsequent term of court, setting aside the judgment and dismissing the suit, plaintiffs appeal. Affirmed.

R. H. Ward, McCollum Burnett, and W. W. Walling, all of San Antonio, for appellants.

Walter E. Jones, of Jourdanton, and R. R. Smith, of San Antonio, for appellee.

FLY, C. J.

This is an appeal from an order dismissing the cause from the docket of the trial court. The suit was filed in 1914, by Maria Louisa Farrias, Josefa Delgado, Caledonia Delgado, Juan G. Delgado, Manuel Delgado, Martin Delgado, and Jose Delgado against Juan Delgado, appellee, to recover a portion of 160 acres of land in Atascosa county, and partition the same among the plaintiffs and defendant. This information is gained from an answer filed by appellee on November 7, 1914; the petition filed in the suit not being copied into the record. On November 19, 1914, the court rendered a judgment granting a recovery to the plaintiffs, herein named, of seven-eighths of the 160-acre tract, and appointed three commissioners to divide it among the parties. On April 12, 1915, at a succeeding term to that at which the judgment was rendered, an application was filed by Juan Delgado to set aside the judgment, alleging among other grounds that two of the plaintiffs named in the petition, namely, Josefa Delgado and Manuel Delgado, were dead when the suit was filed in their name, and that Jesus Delgado, a necessary party to the partition suit, was not made a party. The court, in its order setting aside the judgment of November 19, 1914, found the following facts in its recitals:

"On this 6th day of May, 1915, coming on to be heard the application of Juan Delgado, defendant in the above entitled and numbered cause, filed herein on the 12th day of April, 1915, as amended May 3, 1915, and supplemented May 6, 1915, praying the court to set aside, annul, and vacate and amend the record of the judgment entered in said cause on the 19th day of November, 1914, adjudging and decreeing to plaintiffs herein an undivided seven-eighths interest in and to the land in controversy in said suit, and appointing commissioners to partition the same and make their report and recommendations to the present term of this court, and the court after hearing the application of defendant, and the answer of plaintiffs, by their attorney of record, and duly considering the same, finds that said judgment was granted in the absence of defendant, and defendant's counsel, and in the absence of plaintiff's original petition, and defendant's original answer (which were the only pleadings at the time filed in said cause), though a substituted copy of plaintiffs' original petition, without application to substitute or notice of substituted copy of plaintiffs' original petition, was read to the court in lieu of said pleadings, and it further appearing to the court that there are other parties claiming an interest in the lands in controversy in said suit, by deed duly of record, and by possession of parcels of said land taken, prior to the commencement of this cause of action, and that two of the named plaintiffs in said cause of action were dead long prior to the commencement of this suit, and the court is of opinion that said judgment entered herein on the 19th day of November, 1914, and which appears of record in volume 11, pages 344 and 345, of the minutes of this court, ought to be set aside, annulled, and vacated, and it is hereby ordered, adjudged, and decreed by the court that said judgment be and the same is hereby set aside, annulled, and vacated, and said cause set down for trial in the same manner and position as though no judgment had ever been entered herein."

Afterwards, on April 3, 1918, the court overruled a motion by appellants to set aside the order vacating the judgment of November 19, 1914, and ordered appellants to proceed with a trial on the facts; but they declined to introduce testimony, and the cause was dismissed at their cost. From that order this appeal is prosecuted.

According to the recitals in the judgment granting a new trial in the case, the cause was tried in November, 1914, in the absence of appellee, and without the petition or answer, the only pleadings in the case, and upon an attempted substituted petition, made without an order or notice, and with two of the plaintiffs deceased before the original petition was filed, and other necessary parties not in court, either as plaintiffs or defendants. The case is appealed to this court on a bond purporting to be executed, together with others, by the two dead persons whose names were used as plaintiffs in instituting the suit. The bond is attacked, through a motion to dismiss, because it was executed in part by deceased persons. Before passing upon the validity of the bond, we will discuss the propriety and legality of the order of the court in May, 1915, in setting aside a judgment entered by it at the term next preceding the term at which the order was entered.

The statute requires that the name and residence of the joint owners in a case of partition shall be alleged. Rev. St. 1911, art. 6097. It has been held by the Supreme Court that want of parties is not cured by a failure to take action upon it at the trial. Franks v. Hancock, 1 Posey Unrep. Cas. 554; Ship Channel Co. v. Bruly, 45 Tex. 8; McKinney v. Moore, 73 Tex. 470, 11 S. W. 493; Holloway v. McIlhenny, 77 Tex. 657, 14 S. W. 240; McDade v. Vogel, 173 S. W. 506. In the Holloway-McIlhenny Case the court held:

"Appellee insists that because there was no attempt in the court below to arrest the proceedings for want of necessary parties until the final judgment was amended at a term subsequent to that at which the trial was had the objection comes too late. But we are of opinion that the error cannot be cured by failure to take action in the trial court. A decree of partition in a suit to which one or more of the owners of the land are not parties does not affect their rights. They cannot be bound by the decree, and can have it set aside in any proper proceeding in which all parties are before the court. Courts of justice do not sit to enter empty decrees, and hence will arrest a proceeding of this character for want of necessary parties at any stage of the proceedings. The rule results from the impossibility of making a binding decree without having...