Gillette v. Davis

• Decision Date: 29 March 1920
• Docket Number: (No. 485.)
• Citation: Gillette v. Davis, 15 S.W.2d 1085 (Tex. App. 1920)
• Parties: GILLETTE v. DAVIS et al.
• Court: Texas Court of Appeals

15 S.W.2d 1085

GILLETTE v. DAVIS et al.

(No. 485.)

Court of Civil Appeals of Texas. Eastland.

March 29, 1920.

Appeal from District Court, Comanche County; Joe H. Eidson, Judge.

Consolidated suit by Leslie Gillette against R. D. Davis and others, and by Harold G. Davis, by his next friend, R. D. Davis, against the Standard Shoe & Leather Company and another. From an adverse judgment, Gillette appeals. Affirmed.

See, also, 296 S. W. 658.

A. B. Haworth, of Comanche, for appellant.

Callaway & Callaway, of Comanche, for appellees.

FUNDERBURK, J.

This appeal is the outgrowth of two suits that were consolidated in the trial court. One was by appellant as plaintiff against R. D. Davis, Harold G. Davis, and J. T. Gilbreath, sheriff of Comanche county, in trespass to try title to land, with a second count in the petition setting out particularly the nature of plaintiff's claim. The other suit was one brought by Harold G. Davis, by his next friend, R. D. Davis, against Standard Shoe & Leather Company and J. T. Gilbreath, sheriff, to enjoin sale by the sheriff under execution of the same property involved in the other suit. The writ of injunction was, by proper fiat of the district judge, ordered to be issued on the morning of May 5, 1925, but was not served upon the sheriff, nor did the sheriff have actual knowledge that same had been issued until a few moments after he had, in pursuance to previous advertisement designating that date as the date of sale, "cried off" said land to appellant for the sum of $97.50, and after the purchaser had given him a check for the amount of the bid. Following service of the writ of injunction, the sheriff refused to execute a deed to appellant until after a decision by this court upon the former appeal by appellant from the judgment in the consolidated cases.

In the former appeal, this court held that the title of appellant to the land as purchaser at the sheriff's sale did not depend upon the making of the sheriff's deed, and that, the sale having been completed before the writ of injunction was served, or notice of its issuance brought to the attention of the sheriff, whatever title that could have passed by the sheriff's deed vested in the appellant, and that appellant's claim to have a deed made to him should prevail.

After the remand, Gilbreath, the sheriff, was dismissed and new pleadings filed by the parties. Mrs. R. D. Davis, wife of R. D. Davis, became a party to the suit. Portions of the record refer to her as an intervener, but the record contains no plea of intervention, and she is named in the amended pleading as a defendant who had theretofore been permitted to intervene as a defendant.

Upon his amended pleadings the appellant sought recovery of the same land upon substantially the same ground as before, with the exception that the execution and delivery to him of the sheriff's deed, made following the reversal of the case, was alleged, and his claim of the title to the land was based upon said deed, in addition to the original judgment, execution, etc., as theretofore relied upon.

Appellees by their amended pleading contended that the land belonged to Harold G. Davis, the minor son of R. D. Davis and wife, but, if the court should hold otherwise, facts were alleged which were intended to show that the store building constituting the greater part of the consideration for the land was the homestead of appellees and exempt from the sale. Facts were also alleged which were designed to show that the land in question had been impressed by intention and preparation with homestead rights, making it exempt. A new defense was urged, consisting of allegations to the effect that the land was worth $3,000 and had sold for less than $100, an unconscionably inadequate price, which had resulted, in part, at least, from the fact that, with knowledge that the writ of injunction had been ordered, and in expectation that it would be served so as to stop the sale, appellee R. D. Davis had gone home, and was, without any fault on his part, not present at the sale, but that, if he had known that the injunction would not be served, he would have been present and have caused the land to sell at a much higher price. The purchase price paid for the land by appellant was tendered back to him and judgment prayed for the cancellation of the sheriff's deed. The court gave judgment for appellees, from which appellant prosecutes this appeal.

Appellant's first contention is that the court erred in overruling his motion to require Mrs. R. D. Davis, as intervener, to give security for costs. R. S. 1925, art. 2073, provides that the rules as to security for costs by a plaintiff shall "also apply to an intervenor and to a defendant who seeks a judgment against the plaintiff on a counter-claim after the plaintiff has discontinued his suit." Appellees contend that this statute is not applicable to an intervener unless and until the plaintiff has discontinued his suit.

We cannot agree that this is the proper construction of the statute. With respect to the purpose of the statute, there is this difference in an intervener and defendant: An intervener comes into a suit voluntarily, and a defendant does not. There is just as good reason why an intervener should be ruled to give security for costs irrespective of a discontinuance of plaintiff's suit, as there is when such discontinuance takes place. We do not construe the qualification of the statute, limiting the liability of a defendant to give security to cases where plaintiff discontinues, as applicable to the intervener. It does not follow from this, however, that appellant's contention should be sustained. There is nothing in the record to show that Mrs. Davis was anything other than a defendant. Mere references to her as an intervener, in the absence of any pleading showing she was such, are regarded as inconclusive. We think, for such reason, there is no sufficient showing that the court erred in overruling the motion.

In addition to the above, appellant asserts about twenty-one propositions. We do not deem it necessary to discuss each of them. By the second proposition it is contended that the court erred in overruling appellant's general demurrer. The proposition does not specify wherein the pleading fails to state a cause of action; and, a casual inspection failing to disclose any such deficiency, we overrule the proposition.

By his third proposition and the assignment to which it refers, complaint is made of the action of the court in permitting R. D. Davis to testify that his wife traded an automobile, which was her separate property, for the business at Hasse, including the lot claimed to be the homestead; objection to said testimony being made on the ground, among other things, that there was no pleading to support it. The proposition is overruled. Appellees' pleadings alleged that the building was the property of Mrs. R. D. Davis, and that it was her separate property. The evidence complained of was evidently offered in support of that allegation, and was admissible.

The fourth, fifth, sixth, and tenth propositions will all be controlled by what is hereafter said with reference to the claim of appellees to have the sale set aside for inadequacy of consideration.

Propositions Nos. 9, 11, 12, 13, 14, 15, and 16, and the assignment under which proposition No. 17 is urged, all complain of the findings of the trial court. The court made no findings of fact or conclusions of law other than such findings as are recited in the judgment. So far as the record shows, no request was made of the judge to make and file conclusions of fact and law. In so far as the judgment undertakes to recite findings of fact, such findings are not conclusive. If erroneous, they would not be made to impeach the validity of the judgment. As said in Owen v. Shaw, 20 Tex. 81: "A decree which purports to detail the facts proved, is valid, though it fails to state facts sufficient to justify...