Foster v. Gossett

• Decision Date: 17 May 1929
• Docket Number: (No. 3686.)
• Citation: 17 S.W.2d 469
• Parties: FOSTER et al. v. GOSSETT et al.
• Court: Texas Court of Appeals

Page 469

17 S.W.2d 469

FOSTER et al. v. GOSSETT et al.

(No. 3686.)

Court of Civil Appeals of Texas. Texarkana.

May 17, 1929.

Rehearing Denied May 30, 1929.

Appeal from District Court, Hopkins County; Grover Sellers, Judge.

Suit by Amy Gossett and another against G. Y. Foster and others. Judgment for plaintiffs, and the defendant named and another appeal. Affirmed.

This was a suit by appellee Amy Gossett, joined by her husband, Frank Gossett, against appellants T. R. Foster and G. Y. Foster and appellee J. I. Foster, individually and as administrator of the estate of Mrs. Ola Foster, deceased, to partition 168 acres, less 4½ acres, of the David Attaway survey in Hopkins county and 32 acres of the Manuel Y'Barbo survey in Wood county, together constituting the homestead of said Mrs. Ola Foster at the time of her death, and 118 acres of said Y'Barbo survey in Wood county. The court determined by a judgment rendered at its February, 1928, term that each of the appellants and appellees owned a one-fourth interest, undivided, in the 168-acre and 32-acre tracts, and a one-eighth interest, undivided, in the 118-acre tract, and that they also owned the other one-half of said 118 acres, but subject to the claim thereto of appellee J. I. Foster as administrator of said estate. The court determined further that the parties were not entitled to a partition of the 118-acre tract, but were entitled to a partition of the 168 and 32-acre tracts, and appointed commissioners to make the partition. A partition having been made as directed, a report thereof was duly filed September 19, 1928. Exceptions and objections of appellants to said report were overruled by the court October 5, 1928, when he rendered judgment approving the report and vesting title in each of the appellants and appellees to the part allotted to him or her by the commissioners. This appeal by appellants T. R. Foster and G. Y. Foster is from the judgment last mentioned.

Dial & Brim, of Sulphur Springs, for appellants.

Ramey & Davidson, of Sulphur Springs, and J. H. Beavers, of Winnsboro, for appellees.

WILLSON, C. J. (after stating the case as above).

Appellants' contention that the trial court erred when he refused to comply with their demand for a jury to determine issues presented, they say, by their exceptions and objections to the partition made by the commissioners, is overruled. It appears in the record that the judgment determining the parties were entitled to a partition of the 168-acre and 32-acre tracts was rendered at the February, 1928, term of the district court of Hopkins county, and that no application for a jury was made before that judgment was rendered or at any time during that term of the court. The report of the commissioners then appointed to make the partition was filed September 19, 1928, which was during the August, 1928, term of said court. It appears in a bill of exceptions that during said August, 1928, term, to wit, on October 4, 1928, before the jury for the week had been discharged, appellants demanded that said issues be tried by a jury, and deposited the statutory (article 2124, R. S. 1925) jury fee with the clerk of said court. The demand was refused; and on the next day, to wit, October 5, 1928, the hearing resulting in the judgment here complained of was had to the court without a jury. The statute (article 2125, R. S. 1925; and see section 10 of article 5 of the Constitution) invoked by appellants required them, if they desired the suit to be tried by a jury, to "make (quotin...