Ford v. Liner

• Decision Date: 27 October 1900
• Citation: 59 S.W. 943
• Parties: FORD v. LINER et al.
• Court: Texas Court of Appeals

59 S.W. 943

FORD v. LINER et al.

Court of Civil Appeals of Texas.

October 27, 1900.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Action by T. W. Ford, receiver, against S. F. Liner and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Jack & Jack and Templeton & Harding, for appellant. Lancaster, Beall & Gammon, for appellees.

RAINEY, C. J.

This suit was brought by appellant against the appellees to rescind a sale of land and to recover same, or, in the alternative, to recover a judgment on certain notes which it is alleged were executed for the purchase price for said land. The default in the payment of the notes was duly alleged. After the trial had begun, plaintiff offered in evidence certain notes, which it was shown were the notes given for the purchase price of the land. Objection was made by defendant to their introduction upon the ground that there was a material variance between the notes offered and those set out in the petition, which objection was sustained. Plaintiff thereupon moved the court to be allowed to file a trial amendment, which was denied. Plaintiff then asked to be allowed to withdraw his announcement of ready, which was also denied. Plaintiff thereupon took a nonsuit. Subsequently plaintiff filed an application praying for the reinstatement of his suit, which application was overruled. The record shows that bills of exception were duly reserved to the action of the court in the particulars named. After the transcript was filed in this court the appellees filed an application suggesting an imperfect record, etc., and praying for a writ of certiorari. In obedience to the writ the clerk of the lower court sent up certain proceedings had before the district judge in vacation. These consist of a motion by appellees to strike from the record the bill of exceptions on the ground that it was never signed by the trial judge, and the action of the court thereon, which resulted in an order sustaining said motion and striking from the record said bill. As before stated, this proceeding was had in vacation. A district judge in this state has no power to adjudicate the rights of litigants in vacation, unless authorized so to do by statute. Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 88 Tex. 468, 27 S. W. 100. There is no statute authorizing a judge in vacation to proceed as mentioned herein, and such action is a nullity, and we cannot consider it in passing upon this appeal. This...