Ivy v. Carrell, 6814

• Decision Date: 24 March 1966
• Docket Number: No. 6814,6814
• Citation: 401 S.W.2d 336
• Court: Texas Court of Appeals
• Parties: Marshall IVY, Appellant, v. Cecil CARRELL, Appellee. . Beaumont

Page 336

401 S.W.2d 336

Marshall IVY, Appellant, v. Cecil CARRELL, Appellee.

No. 6814.

Court of Civil Appeals of Texas Beaumont.

March 24, 1966.

Rehearing Denied April 13, 1966.

Glenn Faver, Jasper, for appellant.

Barber & Seale, Jasper, for appellee.

STEPHENSON, Justice.

This is a suit to have a deed declared a mortgage, and to have a cloud removed from the title to plaintiff's land. Trial was before the court and judgment was rendered for plaintiff. The parties will be referred to here as in the trial court.

Defendant's only point of error is that the trial court erred by abusing its discretion in failing to grant defendant's motion for new trial. The record shows plaintiff filed this suit June 12, 1963 and defendant filed an answer June 26, 1963. Plaintiff secured a temporary restraining order and an application for a temporary injunction was denied July 10, 1963. Plaintiff filed an amended petition July 8, 1963 and defendant filed an amended answer February 11, 1964, together with a motion to dismiss.

January 6, 1965 judgment was rendered and entered for plaintiff reading as follows:

'On the 6th day of January, 1965, in the above entitled and numbered cause, wherein Cecil Carrell is plaintiff and Marshall Ivy is defendant, the Judge in open court regularly called said cause in its order on the docket, and came the plaintiff by his attorney and announced ready for trial, and, though duly served with process and having answered herein, the said defendant, Marshall Ivy, failed to appear in this behalf, but made default; wherefore, the citation with the officers return thereon, having been on file with the Clerk of this Court ten (10) days exclusive of the day of filing and of this day, a jury being waived, the matters in controversy, as well of fact as of law, were submitted to the Court, and the Court having heard the pleadings, the evidence and the argument of counsel, all being fully understood, is of the opinion that the material allegations in plaintiff's petition are true and have been proven by a full and satisfactory evidence, and that the deed given by plaintiff to defendant, dated April 9, 1959, and recorded in Vol. 147, at page 494 of the Deed Records of Jasper County, Texas, is in fact a mortgage on the following described property, which is the homestead of plaintiff, and is therefore void; and that such deed creates a cloud on plaintiff's title which should be removed. The property covered by the aforementioned deed is more particularly described as follows:

(Description of property not copied into this opinion.)

'It is therefore ORDERED, ADJUDGED and DECREED by the Court that the plaintiff, Cecil Carrell, recover of and from the defendant Marshall Ivy the title and possession of the premises described above, it is therefore ORDERED, ADJUDGED and DECREED that the aforementioned instrument is of no force and effect and the same is hereby by cancelled, removing the cloud on plaintiff's title cast thereby, and that the plaintiff recover his costs of court in this behalf expended.

'Rendered and signed this 6th day of January, 1965.

/s/ O'Neal Bacon

Judge Presiding'

January 14, 1965 defendant filed a motion for new trial, and then January 25, 1965 filed an amended motion for new trial. The ground set out in such amended motion in substance was that neither the defendant nor his attorney had received notice of such setting and that this case was heard by the court in their absence. It was also set out in such amended motion for new trial that defendant had a valid and meritorious defense in that plaintiff had...