Gillaspie v. City of Huntsville

• Decision Date: 22 November 1912
• Citation: 151 S.W. 1114
• Parties: GILLASPIE v. CITY OF HUNTSVILLE.
• Court: Texas Court of Appeals

151 S.W. 1114

GILLASPIE v. CITY OF HUNTSVILLE.

Court of Civil Appeals of Texas. Galveston.

November 22, 1912.

Rehearing Denied December 12, 1912.

Appeal from District Court, Walker County; S. W. Dean, Judge.

Trespass to try title by the City of Huntsville against W. O. B. Gillaspie. Judgment for plaintiff, and defendant appeals. Affirmed.

W. O. B. Gillaspie, of Huntsville, in pro. per. Dean, Humphrey & Powell, of Huntsville, for appellee.

McMEANS, J.

This is an action of trespass to try title, brought by the city of Huntsville against W. O. B. Gillaspie, to recover the title and possession of certain premises alleged to be a portion of a public street in said city. The defendant was duly served with citation, but, on the appearance day of the next succeeding term of the court, failed to file any answer to the merits, but did file a pleading alleging that the premises in controversy constituted a part of the homestead of himself and his wife, Orine Wynne Gillaspie, and praying that she be made a party defendant. On the call of the appearance docket judgment by default was rendered in favor of plaintiff and against defendant for the land in controversy. On the day following the defendant filed a motion to vacate the default judgment, and at the same time filed his answer setting up many matters of defense to plaintiff's suit. To the motion of appellant to vacate the appellee filed a contest. Upon the issues thus joined the court heard evidence, and upon its conclusion overruled appellant's motion to set aside the judgment by default, on the ground that appellant had not shown a good excuse for his failure to file an answer to the merits in time, and on the further ground that the evidence introduced by appellant did not show that he had a meritorious defense to the suit. From the judgment overruling the motion to set aside the judgment by default appellant has duly prosecuted this appeal.

Upon request of the appellant the trial judge filed his findings of fact, which are as follows:

"(1) Upon the call of the appearance docket on Tuesday, September 26, 1911, no answer or other plea having been filed by the defendant, as required by law, judgment by default was rendered by the court in favor of the plaintiff and against the defendant for the premises described in plaintiff's original petition.

"(2) On September 27, 1911, the defendant filed his motion in writing to set aside the judgment by default rendered herein on September 26, 1911, and also filed his original answer on the said 27th day of September, 1911.

"(3) On September 29th plaintiff filed its contest in opposition to said motion to set aside said default judgment, and on said last-named day the court heard evidence upon said motion and contest, and postponed the argument of counsel and further consideration thereon until October 10, 1911, when the matter at issue again came on for further consideration.

"(4) I find from the evidence offered upon said hearing that no legal excuse was shown by the defendant for having failed to appear and plead herein on appearance day, and before the call of the appearance docket and before the rendition of said judgment by default.

"(5) I further find that the defendant has no meritorious defense to the plaintiff's cause of action herein.

"(6) I further find that the defendant has no legal defense to the plaintiff's suit, but that the defendant claims title to the lands in controversy herein solely under the statutes of limitations, and that the defendant is unable to sustain said plea.

"(7) I further find that the defendant has no deed to the land in controversy and no title thereto, unless it be a limitation title, and I find that the defendant has not had, by himself and those under whom he claims, sufficient adverse possession of the premises in controversy to perfect his title thereto under the statutes of limitations.

"(8) I further find that the land in controversy is a part of Burton street, one of the streets of the city of Huntsville, which said street was duly dedicated by the original grantee, P. Gray, and that dedication was accepted by the plaintiff and had been used as a street for many years before the defendant went into possession of the part thereof in controversy herein."

These findings appear to be amply sustained by the facts appearing in the record.

Appellant by his first assignment of error complains that the court erred in rendering judgment against him by default because the defendant then had a plea before the court requesting that Mrs. Gillaspie be made a party defendant, and that the judgment by default should not have been rendered without first considering and acting upon this plea. Appellant contends under this assignment that "a plea to make additional parties is an appearance in the suit, and a judgment by default will not lie until such plea has been disposed of."

The contention of appellant that his plea to make additional parties had been filed...