Johnson v. Moss

• Decision Date: 11 June 1937
• Docket Number: No. 1668.,1668.
• Citation: 108 S.W.2d 1110
• Parties: JOHNSON et al. v. MOSS et al.
• Court: Texas Court of Appeals

108 S.W.2d 1110

JOHNSON et al. v. MOSS et al.

No. 1668.

Court of Civil Appeals of Texas. Eastland.

June 11, 1937.

Rehearing Denied September 10, 1937.

Error from District Court, Gregg County; W. H. Strength, Judge.

Trespass to try title by Eliza Johnson and others against Harry S. Moss and others, wherein defendants Ida Waldon and her husband filed a cross-action. Judgment for Ida Waldon and her husband, and plaintiffs bring error.

Affirmed.

Clint & Eades, of Dallas, for plaintiffs in error.

Angus G. Wynne, of Longview, and Olga Herrmann Lapin, of Kilgore, for defendants in error.

GRISSOM, Justice.

Plaintiffs, Eliza Johnson and others, on July 11, 1935, instituted this suit in trespass to try title against Harry S. Moss, Ida Waldon and husband, Alec Waldon, and Magnolia Petroleum Company, as defendants. Among the plaintiffs were Bob and John Hughes and Frank Leath, who sued by next friend, it being alleged that each of said plaintiffs were insane. The named defendants, being served with citation, filed their respective answers. Thereafter, plaintiffs filed an amended petition in which they made additional parties defendants; said additional parties had not been served with process, nor had they entered their appearance at the time of the proceedings hereinafter discussed. Plaintiffs had demanded a jury and paid a jury fee. On October 23, 1936, the case was called for trial. Prior to the time the case was called for trial, the defendants Ida Waldon and husband filed their amended answer and cross-action in trespass to try title against all the plaintiffs. After the filing of said cross-action, plaintiffs filed and urged a motion for continuance, said continuance being requested solely for the purpose of making additional parties defendants. The motion for continuance was overruled, whereupon the plaintiffs took a nonsuit. A jury was then impaneled and the cause proceeded for trial upon the cross-action of the original defendants, Ida Waldon and husband. At the conclusion of the evidence, the court instructed a verdict for Ida Waldon and husband against all of the original plaintiffs, and the jury returned its verdict in accordance with such instruction. Upon said verdict the court rendered and entered its judgment in favor of the original defendants Ida Waldon and husband, George Waldon, against all the original plaintiffs for the title and possession of the property in controversy.

Thereafter, upon motion of the cross-plaintiffs, Ida Waldon and husband, the court entered a "corrected" judgment in which judgment the cross-defendants Bob and John Hughes and Frank Leath (who in plaintiffs' original petition were alleged to be insane persons) were, upon cross-plaintiffs' request, dismissed from said suit and, with said cross-defendants eliminated, the so-called "corrected" judgment was rendered against all other cross-defendants as in the original judgment, from which "corrected" judgment cross-defendants have appealed.

The cross-defendants, by applying for a continuance after cross-plaintiffs had filed their cross-action in trespass to try title against them, entered "their appearance thereto and gave the court jurisdiction over them as to the cross-action as fully as would the issuance and service of citation thereon." McElyea v. Parker, 125 Tex. 225, 81 S.W.(2d) 649, 652.

Said cross-defendants (plaintiffs in error here) by numerous assignments of error contend that the court erred in overruling their motion for continuance. Partition not being asked in the petition, it is not shown that the desired additional parties defendant were necessary parties to either plaintiffs' suit in trespass to try title, or to the said defendants' cross-action and the court did not err in overruling the motion for a continuance. Heirs of Tevis v. Armstrong et al., 71 Tex. 59, 9 S.W. 134; Sciraffa v. Flores (Tex.Civ.App.) 274 S.W. 260 (writ dis.). Furthermore, we think that one who files a motion for a continuance and upon its being overruled takes a nonsuit thereby waives any right to complain of the overruling of his motion for continuance.

In our original opinion we reversed the judgment of the trial court because we held that the entry of...