Keyes v. Houston & Great N. R.R. Co.
| Decision Date | 01 January 1878 |
| Citation | 50 Tex. 169 |
| Parties | HOWARD KEYES ET AL. v. THE HOUSTON AND GREAT NORTHERN RAILROAD CO. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Wood. Tried below before the Hon. M. H. Bonner.
This is a fact case. The opinion sets out enough to be understood. A synopsis even of the various items of testimony forming the title claimed by the respective parties would take many pages.
The motion for continuance overruled was a second application.
J. H. Herndon, for appellant.
Jones & Henry, for appellee.
This is a suit of trespass to try title, brought by the Houston and Great Northern Railroad Company against appellees, Howard Keyes and others, for two tracts or parcels of land adjoining each other, and together amounting to three hundred and thirty-three and one-third acres, a part of a survey of some fourteen hundred and odd acres made by virtue of a certificate for a league and labor of land granted by the board of land commissioners of Nacogdoches county on the 1st of February, 1838, to Joseph E. White.
This case was brought by appeal to this court before the adoption of the rules prescribing the manner in which transcripts are to be prepared, and the points relied upon for reversal should be presented to the court. If an illustration were needed to demonstrate the necessity for a radical change in the previous practice in these respects, the present record, the assignment of errors, and the brief of appellant's counsel might be aptly referred to for this purpose. The pleadings are voluminous. Repeated amendments are made by both plaintiff and defendant. The statement of facts alone fills two hundred and twenty-one pages of the transcript. Fifteen distinct bills of exception were taken by appellant to rulings made by the court during the progress of the trial. These bills generally present from three to eight distinct points upon which the action of the court is invoked. While there are only six assignments of error, only one of them points out and definitely indicates the error complained of. The others, however, are sufficiently general and comprehensive in their terms to embrace every conceivable matter or thing done in the court below, from the filing of the original petition to the perfecting of the appeal to this court, on account of which appellant can even plausibly claim a reversal of the judgment; and the brief of appellant's counsel is scarcely more definite than his assignment of errors. It is, as he says, “in the nature more of a continued statement of leading facts”--some of which, however, are by no means accurately stated--than of a discussion of the points of law presented by the record; nor are we cited to a single authority in support of its assertions and conclusions.
In view of the manner in which the case comes into this court and has been presented by counsel, we cannot be expected to give it further consideration than may be essential to its proper determination; and this we will attempt to do as briefly as possible.
The overruling of appellant's application for a continuance is certainly no sufficient ground for a reversal of the judgment. It might, as we think, be well questioned whether Keyes, who alone applied for the continuance, had any interest in the case after having been adjudged a bankrupt and his assignee becoming a party to the action. But as he seems to have been recognized by the court as still a party, and no objection thereto in the court below or in this court has been made by appellee, it is unnecessary for us to express any definite opinion in respect to it, or put our determination of the point on this ground. No proper diligence is shown to have been used to procure the evidence of Able and Bagley; the other absent witness, bringing with him the depositions of Camp and Webster Flanagan, was in court before the plaintiff had closed his case. Yet appellant neither read the depositions nor examined the witness. This fact conclusively demonstrates that the testimony of neither of these witnesses could have been of any material service to him.
Joseph E. White, the grantee of the certificate, a few days after obtaining it, sold fourteen hundred and seventy-six acres of it to John F. Graham. This portion of it was a short ime afterwards located in what is now Harrison county, and, as seems to be admitted...
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Wilson v. Beck
...competent for plaintiff to rebut such defense by introducing a conveyance executed after the commencement of the suit. In Keyes v. H. & G. N. R. Co., 50 Tex. 169, the Supreme Court held that pending an action of trespass to try title it was permissible for plaintiff to buy from heirs of a p......
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Sinsheimer v. Kahn
...suit in conformity with his pre-existing equitable right." The same doctrine is held in Walker v. Emerson, 20 Tex. 706, and in Keyes v. Railway Co., 50 Tex. 169. In Ballard v. Carmichael, 83 Tex. 359, 18 S. W. 734, Judge Gaines says on the same point: "Our system of pleading permits the utm......
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