Hall v. Reese's Heirs

• Decision Date: 24 March 1900
• Citation: 58 S.W. 974
• Court: Texas Court of Appeals
• Parties: HALL v. REESE'S HEIRS.<SMALL><SUP>1</SUP></SMALL>

58 S.W. 974

HALL v. REESE'S HEIRS.¹

Court of Civil Appeals of Texas.

March 24, 1900.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action to quiet title by H. L. Hall against the unknown heirs of Joseph Reese. From a judgment for defendants, plaintiff appeals. Reversed.

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

BOOKHOUT, J.

The appellant filed his original petition in this cause on the 5th day of February, 1897, to remove cloud from title to land in Grayson county, Tex., patented to Joseph Reese, his heirs and assigns. Service was obtained by publication, and defendants answered by attorney. Trial and judgment at the January term, 1899. The appellant went to trial on his third amended original petition, and alleged title and ownership in fee simple, and possession of the land, and that the patent, being to Joseph Reese, his heirs and assigns, was a cloud on his title. He also pleaded title by virtue of the three, five, and ten year statute of limitation, and possession under deeds duly recorded, paying all taxes thereon since January, 1883. He pleaded title from the state, setting the same out in detail. At the September term, 1898, the court submitted the cause to a jury on special issues, some of which they failed to answer. The appellant moved for a judgment in his favor on the issues that were answered. His motion was overruled. At the January term, 1899, the appellees filed their fifth amended original answer, consisting of exceptions, general denial, coverture, and minority of some of the defendants to avoid the plea of limitation pleaded by plaintiff (appellant). They also pleaded the four and ten year statute of limitation as to title of appellant acquired from Henry Taylor and Pollie Carlton, and equitable rule of stale demand. The defendants also set up in their fifth amended original answer the finding of the jury in the special issues submitted to them at September term, 1898, alleging that the jury answered all the material issues in their favor, referred to the answers of that jury, and asked that they be made a part of their answer. The plaintiff (appellant) excepted to this portion of the answer, which exception was overruled. The case, at the January term, 1899, was, at the request of the defendants, submitted to the jury on special issues not answered by the previous jury, and the court, over the objection of the appellant, refused to submit the issues that the jury had answered, and treated all issues answered by the previous jury as facts proved, and would not permit any proof whatsoever on any of the issues that the previous jury had answered. The jury, at January term, 1899, answered all questions propounded to them, and on their answers, together with answers of previous jury, and the undisputed facts as charged by the court, the court entered judgment in favor of appellant, on his plea of the 10-year statute of limitation, for an undivided three-eighths interest in 207 acres of land described in plaintiff's petition, describing the 207 acres by metes and bounds, together with all costs of suit not already otherwise adjudged. Appellant filed motion for new trial, which was overruled, to which appellant excepted, gave notice of appeal in open court, and has duly perfected his appeal. The facts appear in the opinion.

The appellant contends that the court erred in the effect given to the answers of a jury at a former term of court, in response to special issues submitted to them, which findings the court had held were not sufficient to authorize a judgment thereon, and in holding said findings conclusive upon another trial at a subsequent term, and in refusing to admit evidence on said issues, although such findings had not been set aside by a formal order of the court. The cause was tried at the September term, 1898, and submitted to the jury on special issues. The jury answered these issues by their verdict filed November 12, 1898. The plaintiff made a motion that judgment be entered on the verdict. This motion the court overruled. The defendants also moved for judgment, which was not acted upon until the succeeding term, which began in January, 1899, and was then overruled. At the January term the cause was again tried, and the court treated the findings of the jury at the former term as facts established, and sought to supplement the same with the findings on such additional issues as, in the opinion of the court, were necessary to authorize a judgment. He refused to admit evidence on the issues which the former jury passed upon.

The court in its charge repeated to the jury the findings of the jury on the first trial, and told them that the facts so found were established facts, and followed with fifty-six groups of facts as having been so found, and also stated five additional groups of facts, which they were told were undisputed, and which they should find, and then follows with five special issues, to which they were to return answers. The jury returned their verdict finding the undisputed facts as directed by the court, and also answered the five special issues submitted. On these several findings the plaintiff moved for judgment in his favor for the land sued for, which was denied. Defendants' motion for judgment was granted, except as to a three-eighths interest in 207 acres of land, to which it was decreed that plaintiff had title by the 10-year statute of limitations.

We have not been cited to any case which, in our opinion, supports such a practice as was adopted in this case. The bill of exception shows that the trial court based its ruling on the case of Hume v. Schintz (Tex. Sup.) 36 S. W. 429. In that case the petition presented two causes of action: (1) For malicious prosecution; (2) false imprisonment. The jury found for plaintiff on the first cause of action, and for the defendant on the second cause of action. Schintz v. Morris (Tex. Civ. App.) 35 S. W. 516. Upon motion of defendant, the verdict in favor of plaintiff was set aside. The verdict in favor of defendant was not disturbed. The trial court declined to render judgment for defendant on the verdict in his favor on the cause of action for malicious prosecution. An application for mandamus was presented by defendant to the supreme court to compel the trial court to enter a judgment on the verdict in his favor, giving as a reason that he desired to plead the same in bar to any subsequent suit for the same cause of action. The supreme court refused the application, on the ground that the verdict was an adjudication, and could be pleaded in bar to another suit between the parties for the same cause of action. In that case the verdict of the jury disposed of all the issues involved in the cause of action seeking a recovery for malicious prosecution. When the verdict disposes of all the issues involved in a cause of action, the verdict is an adjudication, and, if not set aside, is conclusive of the matter therein involved. But such is not the case here. The findings of the jury on the special issues filed in November, 1898, did not, in the opinion of the trial court, dispose of the issues involved in the cause of action. The court refused to enter judgment upon these findings. If a jury fails to find on all the material issues submitted to them, and the court can, upon another trial at a subsequent term, treat the facts found by them as established facts, and submit to another jury such additional issues as, in his opinion, should be found, there would be no limit to his power in this respect. If, upon the second trial, the jury should fall to find on all the issues in the case, the court at the next term could submit the case to a third jury, on such issues as the jury on the second trial had failed to answer. Thus, a case might be submitted to several juries before all the material issues necessary to support a judgment were determined, and then, if either party desired the verdict reviewed upon appeal, a statement of facts must necessarily be prepared and filed at each term a jury passes on any particular issue in the case. The statute makes provision for but one verdict in any case, which may be either general or special. Rev. St. art. 1328. Such verdict should comprehend all the issues submitted. Rev. St. art. 1333. If the verdict returned by the jury in November, 1898, disposed of all the material issues in the case, judgment should have been entered thereon. If the verdict failed in this respect, then the court should, of its own motion, have set the verdict aside, and treated the result as a mistrial.

The action of the court in the matters above set forth is made the ground of appellant's first assignment of error, in which he complains of the overruling of his special exceptions to that part of defendants' fourth amended original answer setting up said findings of the jury at a former term of the court, and in the tenth and eleventh assignments of error complaining of the action of the court in refusing to admit testimony offered by him on said issues, and in charging the jury that the answers of the former jury to said issues were established facts. We think these assignments are well taken.

Appellant's second assignment of error complains of the action of the trial court in refusing to enter judgment for plaintiff upon his motion therefor, because he says the uncontroverted evidence and the verdict of the jury upon the special issues submitted to them shows that plaintiff had a good and sufficient title to the land in controversy, emanating from the sovereignty of the soil. The appellees, in reply to this assignment, submit a counter proposition, to the effect that the original certificate No. 743, having never been recommended by the traveling board of land commissioners, nor established by suit, was absolutely void, and evidenced no right whatever, and was mere waste paper, and therefore the partition sale in 1857...