Landram v. Robertson

• Decision Date: 01 May 1946
• Docket Number: No. 11604.,11604.
• Citation: 195 S.W.2d 170
• Parties: LANDRAM v. ROBERTSON et al.
• Court: Texas Court of Appeals

195 S.W.2d 170

LANDRAM v. ROBERTSON et al.

No. 11604.

Court of Civil Appeals of Texas. San Antonio.

May 1, 1946.

Rehearing Denied May 29, 1946.

Appeal from District Court, Victoria County; Howard P. Green, Judge.

Action in nature of trespass to try title, by Conrad J. Landram against Alexander P. Robertson and Susan A. P. Robertson, individually and as independent executor and executrix of the estate of D. L. Robertson, deceased, to recover title and possession of land, and for damages. From judgment dismissing cause of action as to defendants, both in their individual and representative capacities, plaintiff appeals.

Judgment in so far as it dismissed cause of action as to Susan A. P. Robertson reversed and cause remanded. Judgment as to Alexander P. Robertson affirmed.

R. C. Patterson, of Houston, for appellant.

Crain, Vendenberge & Stofer, of Victoria, for appellees.

MURRAY, Justice.

This suit was instituted by Conrad J. Landram in the nature of a trespass to try title against Alexander P. Robertson and Susan A. P. Robertson. Each defendant being sued individually and as independent executor and executrix of the estate of D. L. Robertson, deceased, seeking to recover the title and possession of certain land situated in Victoria County, Texas. The suit was for damages as well as to try title. The original suit was filed on August 11, 1942, but no citation was ever issued. The defendants were alleged to be residents of the State of New York. On August 17, 1945, Alexander P. Robertson, acting only as independent executor of the estate of D. L. Robertson, deceased, and Susan A. P. Robertson, acting individually and as independent executrix of the estate of D. L. Robertson, deceased, both defendants acting through their attorney, John J. Stofer, Esq., filed a disclaimer. On August 17, 1945, the defendant Alexander P. Robertson filed his answer to plaintiff's petition. On November 26, 1945, the cause went to trial in the District Court of Victoria County, and the jury was selected. After the selection of the jury the court heard the exceptions of the defendant Alexander P. Robertson and sustained the same. Whereupon the plaintiff filed his motion for voluntary non-suit on November 27, 1945, as to all defendants herein as to one specified cause of action alleged in plaintiff's petition. On November 27, 1945, plaintiff filed and presented his motion for judgment against the defendant Susan A. P. Robertson, which motion was by the court refused and overruled, and the defendant Susan A. P. Robertson was ordered dismissed from the suit.

The plaintiff declining to plead further, the court dismissed the cause of action as to the defendants, both in their individual and representative capacities, from which judgment Conrad J. Landram has presented this appeal.

Appellant's first contention is that the court erred in overruling his motion for judgment against the defendant Mrs. Susan A. P. Robertson. The disclaimer filed by Mrs. Robertson, on August 17, 1945, is as follows:

"Now comes Alexander P. Robertson, Jr., not individually but only as independent executor of the estate of A. P. (D. L.) Robertson, deceased, and also comes Susan A. P. Robertson, individually and as independent executrix of the estate of A. P. Robertson, deceased, and would show the Court that the estate of A. P. Robertson, deceased, has long since been closed and dropped from the docket of the Probate Court where said will was probated in the State of New York, and that the said Susan A. P. Robertson has conveyed all her right, title and interest in the property sued for herein to the said Alexander P. Robertson, Jr., and that therefore, the said Alexander P. Robertson, Jr., individually, is the only one of the defendants named in said suit who has any interest in the lands sued for, and that his interest is individual and not representative.

"Wherefore, said Susan A. P. Robertson, individually and as independent executrix of the estate of A. P. Robertson, deceased, and that the said Alexander P. Robertson, Jr., as independent executor of the estate of A. P. Robertson, deceased, enter this disclaimer and pray that no costs be adjudged against them."

At the time this disclaimer was filed appellant's only pleading was his original petition which, in addition to the formal allegations usually found in a trespass to try title petition, contained the following allegations:

"That on the day and year last aforesaid, the defendants and each of them, jointly and severally, unlawfully entered upon said premises and ejected plaintiff therefrom, and unlawfully withhold from him the possession thereof, to his damages in the sum of at least $5,000.00.

"Without limiting the generality of the foregoing allegation, but expressly saving the same, plaintiff further alleges that the defendants, acting in concert and acting separately, repudiated and denied the title and estate and equities of the plaintiff in the above described lands, without cause.

"That the reasonable annual rental value of said land and premises is at least $200.00.

"Plaintiff gives notice of his intention to amend for the purpose of stating further claims and demands, and of adding such additional parties as may be necessary or proper."

On November 3, 1945, and subsequently to the filing of the above disclaimer, appellant filed his First Amended Original Petition, setting up in addition to his trespass to try title suit a different cause of action. Mrs. Robertson filed nothing further in answer to this amended petition. Alexander P. Robertson filed an answer to the amended petition, containing certain exceptions which were sustained by the court, and upon appellant's refusal to plead further the cause was dismissed as to him. Thereafter, on November 27, 1945, appellant filed a motion for non-suit as to one phase of his cause of action and for judgment against Mrs. Robertson as to the cause of action set up in his amended petition. The attorney, John G. Stofer, who had filed the disclaimer for Mrs. Robertson, was present in court and was furnished a copy of this motion. The court, after considerable discussion of the matter with Mr. Stofer, overruled the motion for judgment and dismissed Mrs. Robertson from the suit.

The question to be decided is, had Mrs. Robertson, by filing the disclaimer, entered her appearance in the cause, and was she required to take notice of the filing of the amended petition setting up a new cause of action? We are of the opinion that when Mrs. Robertson filed her disclaimer she entered her appearance in the case and was thereafter required to take notice of amended pleadings filed by appellant, even though such pleading set up a new cause of action.

In her disclaimer Mrs. Robertson came into court and invoked the jurisdiction of the court for the purpose of recovering her costs. She did not even attempt to limit her appearance in any way. Having submitted herself to the jurisdiction of the court she was in court for all purposes. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69; St. Louis & S. F. R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75; Lindsey v. Ferguson, Tex.Civ.App., 80 S. W.2d 407; Long Island Machinery & Equipment Co. v. Baird, Tex.Civ.App., 117 S.W.2d 565.

Having entered her appearance she was required to take notice of all amended pleadings filed in this case with the leave of the court. Rule 62, T.R.C.P.; Slattery v. Uvalde Rock Asphalt Co., Tex.Civ.App., 140 S.W.2d 987; Davis v. Wichita Bank & Trust Co., Tex.Civ.App., 286 S.W. 584; Tyson v. First State Bank & Trust Co., Tex.Civ.App., 154 S.W. 1055; Mexia Ind. School Dist. v. City of Mexia, 134 Tex. 95, 133 S.W.2d 118, 134 A.L.R. 1277.

In Phillips v. The Maccabees, Tex. Civ.App., 50 S.W.2d 478, 479, Justice Alexander, now Chief Justice of the Supreme Court of Texas, said: "Were they charged with constructive notice of the new cause of action thereafter set up in the amendment? The general rule is stated to be that a defendant who has been cited but has not answered must be notified of every amendment which sets up a new cause of action or requires a more onerous judgment of him; but if he has pleaded to the action or otherwise entered an appearance therein, he is before the court for all purposes and is charged with notice of all amendments thereafter filed."

Furthermore, the lawyer who signed the disclaimer as attorney for Mrs. Robertson and who still represents her upon this appeal was present in court and accepted a copy of the motion for judgment. He also entered into a discussion with the trial court concerning the matter, without asking leave to appear as amicus curiæ, or in...