Hunt v. Ramsey

• Decision Date: 22 March 1961
• Docket Number: No. A-7892,A-7892
• Citation: Hunt v. Ramsey, 162 Tex. 133, 345 S.W.2d 260 (Tex. 1961)
• Parties: Stevie Jackson HUNT et al., Petitioners, v. G. E. RAMSEY, Jr. et al., Respondents.
• Court: Texas Supreme Court

Page 260

345 S.W.2d 260

162 Tex. 133

Stevie Jackson HUNT et al., Petitioners, v.G. E. RAMSEY, Jr. et al., Respondents.

No. A-7892.

Supreme Court of Texas.

March 22, 1961.

Rehearing Denied April 26, 1961.

Sonfield & Sonfield, Houston, for petitioners.

Henry Russell, Pecos, for respondentsG. E. Ramsey, Jr., and Republic Nat. Bank of Dallas Harry G. Dippel and Frank L. Merrill, Fort Worth, and Stubbeman, McRae, Sealy & Laughlin, Durward Goolsby and W. B. Browder, Jr., of above firm, Midland, for respondentContinental Oil Co.

GREENHILL, Justice.

In 1952, G. E. Ramsey and G. E. Ramsey, Jr., brought suit against over 1,000 defendants and obtained a judgment, under plea of limitation, for several thousand acres in Reeves County.The land was, apparently, an old townsite surrounded by many small farm tracts.Most of the defendants, including S. W. Jackson, were cited by publication and did not answer.Judgment was taken against them by default.

The plaintiffs in this suit for an equitable bill of review are the heirs of S. W. Jackson.They seek to recover land previously owned by Jackson, one town lot and one 5-acre farm tract which were a part of the very large tract obtained by the Ramseys.Plaintiffs filed a disclaimer as to all the rest of the land covered the 1952 judgment.

G. E. Ramsey is dead.Before he died, he conveyed his interest in the property to G. E. Ramsey, Jr.In this bill of review action, the plaintiffs sued only G. E. Ramsey, Jr., the Continental Oil Co. which has an oil and gas lease under the Ramseys, and a Dallas bank which is alleged to have some character of mineral assignment from the Ramseys.The plaintiffs did not make parties any other of the one thousand or so defendants to the 1952 suit.For that reason the trial court sustained pleas in abatement and exceptions to this action, and the plaintiffs' suit was dismissed.That action was affirmed by the Court of Civil Appeals.334 S.W.2d 549.

In the 1952 trespass to try title action, the Ramseys alleged that they had acquired title by limitation to approximately nine and one-half sections which constitute over 5,000 acres of land.The area included the townsite of Montclair.The Ramseys did not bring suit for particular lots, blocks, or tracts.They alleged that they had acquired title by limitation to the entire tract which was described as Sections 6,7,18,19, and20 in Block 57; and Sections 1,12,13,24, and the north half of Section 36 in Block 58, in the T. & P. Ry. Co. survey.

In that suit, the Ramseys named some fifteen pages of defendants including S. W. Jackson.Citation was had by publication on most, if not all, of the defendants based on the affidavit of G. E. Ramsey that the residences of the defendants were not known.Of over 1,000 defendants cited, some 40 or 50 filed answers.The judgment in that suit recites: 'All other defendants, although all and each had been duly cited and served with citation as required by law, all and each failed to appear or file an answer herein and wholly made default.'The judgment also contains another specific finding that 'each of the defendants in this cause has been duly cited and served with citation and process as required by law.'In the 1952 judgment, some defendants recovered from all other parties, plaintiff and defendant, particular lots in the town, particular farm tracts or other interests in particularly described properties.The judgment recites that the Ramseys recover title to all of the land sued for except the particular lots or tracts awarded to particular defendants.The judgment recites that: 'none of the defendants herein or hereinafter named have any title, claim or interest in the property which is the subject matter of this suit, except as set out * * * above.'No appeal was taken.

In this bill of review suit, Stevie Jackson Hunt and her sister, Minerva Jackson Moye, allege that they are the heirs of S. W. Jackson, one of the many hundred defendants cited by publication in the 1952 suit; that S. W. Jackson, a resident of Hardin County, Texas (over 500 miles from Reeves County) died in 1912; that the plaintiffs live in Houston, Texas, also a great distance from Reeves County; that neither of the plaintiffs here who were 71 and 73 years of age, respectively, were parties to the 1952 suit or ever heard of it until late in 1956 when they promptly employed counsel and brought this action; that the citation had been by publication in small print in The Pecos Enterprise which they describe as a small, local paper; and that they, the plaintiffs, were not negligent in failing to file this suit sooner.They alleged that they had a meritorious defense to the 1952 suit.

As stated, these plaintiffs in their pleadings disclaimed and quitclaimed any interest in any portion of the tract recovered in 195i by the Ramseys or any of the defendants in that case other than the two specific parcels here in issue.They further allege that none of the defendants in the 1952 action had any claim or interest in the lot and 5-acre farm tract which belonged to S. W. Jackson and which they here seek to recover.

The citation by publication in the 1952 case was supported by an affidavit of G. E. Ramsey that he did not know the residence of any of hundreds of defendants(including S. W. Jackson).The plaintiffs allege that the affidavit was false, perjured, and fraudulent; that the 1952 suit and the citation by publication was part of a fraudulent scheme to keep the plaintiffs from knowing of the suit; that the testimony of G. E. Ramsey, which was the only oral testimony in the 1952 suit, was perjured and false and was given to deceive the court.

It is further alleged that in 1951, the Ramseys executed oil and gas leases on the large tract to Jack May and William Finch.They assigned the lesses to Hood who assigned them to Continental Oil Company.It was agreed in this case that Continental now owned the leases.It was made a party to this suit.May, Finch and Hood were not parties to the 1952 suit and they are not made parties here.It is further alleged that the Ramseys in 1956 executed a mineral deed or some other type of instrument to the Republic National Bank of Dallas.It is made a party to this suit.

It is the position of Ramsey and the other defendants to this bill of review action that all parties to the 1952 judgment are indispensable parties to a direct action to set aside any part of the 1952 judgment; that if all parties to the 1952 judgment are not before the court, the action is a collateral attack and the recitation of due service in the 1952 judgment is absolutely controlling.They say in the alternative that if this is a direct attack, nevertheless all of the parties to the former judgment are necessary parties under Rule 39; and if there is any question about that point, Rule 39(b) of the Texas Rules of Civil Procedure vests the trial court with discretion as to their necessary joinder, and that this has been determined by implication by the trial court against the plaintiffs in this action.

(1) The first question is whether, in any event, a part of a judgment may be set aside as to some parties and left intact as to others.We believe that it has been settled that it can be.This was the holding in Boone v. Hulsey, 1888, 71 Tex. 176, 9 S.W. 531.There suit was brought against 40 defendants to recover a large tract of land.Some answered and some did not.Some of the answering defendants compromised with the plaintiffs.Judgment was rendered in favor of the other answering defendants, and the plaintiff recovered judgment by default against the non-answering defendants.After the motion for new trial had been overruled, the non-answering defendants(who had had a judgment by default taken against them) moved that the judgment be set aside as to them because of defective service.This motion was granted.At a subsequent term, the plaintiffs moved that the prior judgment in favor of the answering defendants be set aside because the judgment had been set aside as to the non-answering defendants.This motion was overruled.At the subsequent term there was a separate trial for the former non-answering defendants, and judgment was rendered for them.This action was upheld by this Court.Because the opinion is highly pertinent here, a portion of it is here set out:

'* * * We think the question of the vacation of the former judgment as an entirety, by the setting aside of the judgments by default against some of the defendants, properly before us for consideration, and we will dispose of it here.It is to be noted that each of the defendants claims a separate parcel of the land as against the plaintiffs.Therefore the plaintiffs might have brought a separate suit against each, or at least for the recovery of each tract; and, after the suit was brought against all, each defendant or set of defendants claiming each separate parcel might have claimed a severance, and had a separate trial and judgment.Ballard v. Perry, 28 Tex. 347.Chambers v. Fisk, 9 Tex. 261, was such a case.There a severance was had, and, after a verdict in favor of each defendant, the judgments were recorded in one entry, and as but one judgment.The plaintiffs appealed, giving one bond, payable to all the defendants.The appeal was dismissed; the court holding that the judgments were several, and that a separate bond should have been given payable to each defendant.This clearly recognizes the doctrine that if, in a case in which the defendants are entitled to sever, a severance be allowed upon the trial, there may be more than one final judgment; and it follows as a consequence that the fate of the judgment in favor of one or more defendants is not dependent upon the result of a motion for a new trial made by the other defendants, or to vacate the judgment against them.In this casethe defendants who had answered, and who had obtained a verdict and judgment upon the first trial, were...