Heck v. Martin

• Citation: 13 S.W. 51
• Parties: HECK <I>et al.</I> <I>v.</I> MARTIN.
• Decision Date: 10 December 1889
• Court: Supreme Court of Texas

13 S.W. 51

HECK et al.v.

MARTIN.

Supreme Court of Texas.

December 10, 1889.

Commissioners' decision. Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Hunter, Stewart & Dunklin, for appellants. J. A. Holland, for appellee.

HOBBY, P. J.

Action of trespass to try title in the usual form, brought by appellee, Martin, against Heck & Baker, appellants, to recover a lot described as lot No. 3, in block 32, in Jenning's south addition to the city of Fort Worth. Defendants answered by general demurrer, general denial, and plea of not guilty. There was judgment for the plaintiff, appellee, from which defendants, appellants, appeal. It was agreed that both parties claim under J. Q. Sandidge as a common source of title. On February 20, 1884, Sandidge executed a deed to appellee for the land, which was duly acknowledged and recorded. The appellants claim title to the lot in question under a deed from the sheriff of Tarrant county, dated the 5th day of January, 1886. On the 13th day of November judgment was rendered in justice's court of precinct No. 1, Tarrant county, Tex., in favor of J. G. Reily, and against the appellee J. A. Martin, and one R. M. Bowman, for the sum of $103, with interest at 12 per cent. per annum and cost, including 10 per cent. attorney's fees. On the 25th day of November, 1886, an execution issued on said judgment against said J. A. Martin and R. M. Bowman, and was on the 28th day of said month levied on the lot in question as the property of said Martin; and on the 5th day of January, 1886, following, said lot was sold by the sheriff of Tarrant county, and bought by the appellants, Heck & Baker, who paid therefor the sum of $400. The lot was the individual property of Martin, and had never been the partnership property of Bowman & Martin. The judgment of the justice's court, under which appellants, Heck & Baker, claim, is in due form, and regular upon its face. It recites that citation was issued on the 26th day of September, 1885, returnable to the October term of said court, and that it was returned duly executed on Bowman & Martin, and Sam Kline, of Freeberg, Kline & Co. The judgment was rendered on the 13th day of November, 1885, and further recites: "This cause this day coming on to be heard, the parties appeared in person and by attorney, and announced ready for trial." After the formal part, the judgment further reads: "It is therefore considered and adjudged by the court that the plaintiff, John G. Reily, do have and recover of the defendants J. A. Martin and R. M. Bowman, lately composing the firm of Bowman & Martin, the sum of one hundred and three dollars, ($103,) being principal and interest of the note sued on, together with 12 per cent. interest from date hereof, and all cost in this behalf expended, as well as the sum of $10 attorney's fee stipulated in said note." It was agreed that an execution, issued on the judgment the 25th day of November, 1885, and that the same was in all things regular, and was against J. A. Martin and R. M. Bowman; that it was on the 28th day of November, 1885, levied on the lot in controversy, and on the first Tuesday in January, 1886, the said lot was sold under said execution, and was bought by Heck & Baker, appellants herein, who paid the purchase money therefor, and took the sheriff's deed to the same. Appellee, Martin, testified, over appellants' objections, that he was not served with citation in said case in the justice's court, and that he did not appear in said cause upon the trial thereof, either in person or by attorney, and that he did not authorize any one to appear for him, and that he did not know that said judgment was rendered against him until after said lot was sold. L. N. Cooper was permitted, over objections of appellants, to testify that he was attorney for J. G. Reily in the case of Reily v. Bowman & Martin, in the justice's court, and that it had been a long time ago, and he did not remember distinctly whether J. A. Martin was served with citation or not, but that it was his impression that he was not; that Martin was not represented in said cause by any attorney; to all of which evidence of the said Martin and Cooper appellants duly excepted. The original papers in the suit of J. G. Reily v. Bowman & Martin et al. were lost. First assignment: The court erred in admitting the evidence of Martin and Cooper to the effect that Martin had not been served with citation in the case of J. G. Reily v. Bowman & Martin et al.,...