Hall v. Reese's Heirs

• Decision Date: 06 June 1901
• Citation: 64 S.W. 687
• Parties: HALL v. REESE'S HEIRS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

64 S.W. 687

HALL v. REESE'S HEIRS.¹

Court of Civil Appeals of Texas.

June 6, 1901.

Appeal from district court, Grayson county; Rice Maxey, Judge.

Action by H. L. Hall against the unknown heirs of Joseph Reese. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Wolfe, Hare & Semple, for appellant. W. D. Gordon and A. L. Beaty, for appellees.

GARRETT, C. J.

The appellant, who was in possession of a tract of land, brought suit in the district court of Grayson county against the unknown heirs of Jos. Reese to remove cloud from his title. When the cause came up for trial, and both parties had announced ready, and the trial had been commenced, the appellant, surprised at a ruling of the court, asked leave to withdraw his announcement of ready for trial, and to continue the cause. Leave was granted, and the cause was continued, but all costs that had accrued in the cause up to that date were taxed against the appellant, amounting to $183.45. At a subsequent term of the court the cause was tried, and the appellant recovered only a portion of the land. Not being satisfied with the judgment, he appealed from it, and the court of civil appeals for the Fifth district reversed the judgment of the district court, and rendered judgment in favor of the appellant for the recovery of the land, and that he be quieted in his title, and "recover of appellees all costs by him in this behalf expended, both in the court below and this court, for which execution may issue." 58 S. W. 974. No exception was taken by the appellant to the order of the district court taxing him with the costs up to the time of his withdrawal of his announcement of ready and the continuance of the cause, and no error was assigned upon it in the court of civil appeals, and the question was not considered by that court. After the mandate of the court of civil appeals had been filed in the court below, and the clerk of that court was about to issue an execution against the defendants for the entire bill of costs, amounting to $459.68, they filed a motion in the original cause, showing the fact that $183.45 of said costs had been adjudged against the plaintiff by the district court, and asked "that Hall, the plaintiff, Arnold, the clerk, and Shrewsbury, the sheriff, be cited to answer, and on final hearing that the court enjoin any and all execution for costs in said cause for said sum of $183.45 taxed against plaintiff as aforesaid, and that said sum be taxed against said Hall according to said judgment of May...