Hart v. Hunter

• Decision Date: 24 October 1908
• Parties: HART et al. v. HUNTER et al.
• Court: Texas Court of Appeals

114 S.W. 882

HART et al. v. HUNTER et al.

Court of Civil Appeals of Texas.

October 24, 1908.

On Rehearing, December 5, 1908.

Appeal from District Court, Hood County; W. J. Oxford, Judge.

Action by Lib Hart and others against Myra Hunter and others. From an adverse judgment, plaintiffs appeal. Affirmed in part, and reversed and rendered in part.

J. G. Matthews, John J. Hiner, and R. R. Neyland, for appellants. H. D. Payne, W. L. Dean, F. H. Chandler, Lee Riddle, and B. M. Estes, for appellees.

SPEER, J.

S. A. Green, Lib Hart, and Mildred Hart, surviving wife and children, respectively, of C. C. Hart, who died intestate on November 6, 1889, brought this suit of trespass to try title to recover from the appellees a tract of land situated in Hood county, and to have declared void two certain judgments of the district court of that county in favor of G. A. Rucker, wherein the title had been divested out of these plaintiffs and vested in the said Rucker. Issue was properly joined, and a trial had before the court, which resulted in a judgment in favor of the defendants, and the plaintiffs have appealed.

C. C. Hart died seised of the lands in controversy, but appellants cannot recover unless they succeed in avoiding the two judgments referred to and hereafter set out. The validity of the first judgment, which for convenience will be referred to as judgment in cause No. 948, is first attacked by an objection to the same when offered in evidence by appellees. The judgment itself is as follows: "S. A. Hart v. J. E. Arrington et al., under date of October 10, 1895. This day this cause coming on to be heard, the plaintiffs appeared by attorneys, the intervener G. A. Rucker appeared by attorney, and the defendants J. E. Arrington and J. C. Archer appeared in person and disclaimed any interest in the subject-matter of the suit, and the defendants A. J. Rigsby and John Kuykendall appeared not, but wholly made default, though they were duly and legally served to appear, and it appearing that the defendants Hal Caulder and Ed. Caulder and Ft. Worth & Rio Grande Railroad Company have not been cited, plaintiffs and intervener discontinue their suit as to them. A jury being waived, all matters of facts as well as of law were submitted to the court, who, after hearing all the evidence and argument of counsel, is of the opinion that the plaintiffs, Mrs. S. A. Hart, and Lib Hart, and Mildred Hart and the intervener, G. A. Rucker, do have and recover of the defendants A. J. Rigsby and John Kuykendall all the right, title, and interest which they have in and to the following described tract of land, to wit, all the land described in plaintiffs' petition, and that all the title which the said A. J. Rigsby and John Kuykendall have in said tract of land be divested out of them and vested in the plaintiffs and intervener, and that they have their writ of possession against said defendants, and, further, that the defendants J. E. Arrington and J. C. Archer go hence without day and recover of plaintiffs and intervener their costs of suit, for which let execution issue. The court further finds that the plaintiffs, Mrs. S. A. Hart and Lib Hart and Mildred Hart, through their attorneys of record, A. R. Cushman and Riddle & Martin, have entered into an agreed judgment and compromise with the intervener, G. A. Rucker, as to the disposition of the land involved in this suit, and the court, after carefully examining the same, finds it to be for the best interests of the plaintiffs that said agreement and compromise be made, approves the same, and enters his decree upon said agreement and compromise. It is therefore ordered, adjudged, and decreed that the plaintiffs, Mrs. S. A. Hart, Lib Hart, and Mildred Hart, do have and recover of the intervener, G. A. Rucker, the following described tract of land, being a portion of the 1,160-acre survey of land in Hood county, Tex., patented to Pleasant Thorp, assignee of James S. Turner, and more particularly described as follows: Beginning at the N. E. corner of the Richard Rains survey; thence S. 30° E., 450 varas, a stake for corner; thence N. 60° E., 1,545 varas, a stake for corner; thence N. 30° W., 450 varas, a rock for corner; thence S. 60° W., 737 varas, a rock for corner; thence N. 30° W., 160 varas, a rock for corner; thence S. 60° W., 950 varas, a rock for corner; thence N. 30° W., 950 varas, to original N. B. Line; thence S. 60° W. to the N. E. corner of a tract out of this survey sold to Z. E. Coombs, 250 varas; thence S. 30° E., 1,296 varas, to the N. B. line of the R. Rains survey; thence N. 60° E. to the place of beginning —and that all the right, title, and interest which the said G. A. Rucker has to the above-described tract of land be divested out of him and vested in Mrs. S. A. Hart and Lib Hart and Mildred Hart, and that they have their writ of possession. It is further ordered, adjudged, and decreed that the intervener, G. A. Rucker, do have and recover of the plaintiffs, Mrs. S. A. Hart, Lib Hart, and Mildred Hart, the following described tract of land, being a portion of the 1,160-acre survey of land in Hood county, Tex., patented to Pleasant Thorp, assignee of James S. Turner, and more particularly described as follows: Beginning at the S. E. corner of a 320-acre tract out of said Turner survey sold by William Jernigan to R. Clark on the N line of T. W. Bundicks survey; thence N. 60° E. to the S. W. corner of the T. W. Arrington 160-acre tract; thence N. 30° W. with the W. line of said Arrington survey to the W. line of the E. Bolton survey; thence N. 30° W. with the west line of said Bolton survey to its N. W. corner; thence N. 60° E. to the S. W. corner of the McKinney & Williams survey; thence N. 30° W. with the W. line of said McKinney & Williams survey to its N. W. corner; thence S. 60° W., 737 varas, to the S. W. corner of the Lee Roark survey; thence N. 30° W., 160 varas, to the S. E. corner of a tract of 160 acres of this survey sold by J. D. McCamant to S. Jacobs & Co. and now lived on and claimed by I. W. Walley; thence S. 60° W. with the S. line of said Jacobs tract to its S. W. corner; thence N. 30° W., 1,008 varas, to the N. W. corner of the said Jacobs tract; thence S. 60° W., 1,054 varas, a stake for corner; thence S. 30° E., 160 varas; thence N. 60° E., 737 varas, a rock for corner; thence S. 30° E., 450 varas, a stake for corner; thence S. 60° W., 1,545 varas, to the E. B. line of the R. Rains survey; thence S. 30° E., 991 varas, to the N. W. corner of a 320 acres sold out of this survey to R. Clark; thence N. 60° E., 1,329 varas, to the N. E. corner of said Clark survey; thence S. 30° E. to the place of beginning— and that all right, title, and interest which the said Mrs. S. A. Hart and Lib Hart and Mildred Hart have in and to the last above-named tract of land be divested out of them and vested in the said G. A. Rucker. It is further ordered that plaintiffs have and recover of intervener, G. A. Rucker, all costs in this behalf expended, for which let execution issue. It is further ordered that the said G. A. Rucker have his writ of possession for the above-described tract of land."

The suit of S. A. Hart v. J. E. Arrington et al., No. 948, was an action by the present plaintiff, S. A. Green, for herself and as next friend for the other plaintiffs in this case, then minors, to recover the land in controversy from the defendants therein, and was instituted by a firm of attorneys under a contract entered into with Mrs. Green, whereby she agreed to convey to said attorneys one-half of all lands which they might recover for herself and children. G. A. Rucker intervened in the suit and claimed the land as against the plaintiffs and defendants; but no citation was ever issued or served on the plaintiffs, and no guardian ad litem was ever appointed by the court to represent the minors, and no answer of any kind was ever filed by the plaintiffs after such intervention, nor was there any power of attorney filed among the papers, authorizing the attorneys of plaintiff to confess judgment, and for these reasons appellants objected to the introduction of the judgment in evidence, and now insist that the overruling of such objection was error. The propositions under the assignment presenting this question also raise, in a general way, the objection that the judgment was obtained through fraud by means of a conspiracy between the attorneys for plaintiff and the intervener, and such an objection appears to have been made to the evidence when offered; but it is a sufficient reply to this objection to say that fraud, which, of course, would hardly appear upon the face of the record, must be shown by extrinsic evidence, to be weighed by the court or jury trying the case, and would not therefore constitute an objection to the introduction of the judgment in evidence. Maverick v. Salinas, 15 Tex. 57. The objection first stated, however, requires us to determine whether or not it was necessary for the plaintiffs in cause No. 948 to be served with a citation on the intervener's pleadings, seeing that the judgment recites that the plaintiffs "appeared by attorneys." We have resolved this question in the negative. Under article 3498u, Sayles' Ann. Civ. St. 1897, appellant Mrs. Green, as next friend to her minor children, was authorized to institute the suit, and in prosecuting it she had the same rights as though she had been the guardian of such minors, with certain exceptions which do not affect this controversy. This, we take it, placed the minors upon the same footing with other litigants and removes from the consideration any question of the effect of their nonage. But this conclusion only brings us to a consideration of the real question presented by appellants, and that is that all of the plaintiffs in that case, including the mother, should have been cited to answer the intervention, and the case of Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172, and the line of case...