Langford v. Douglas

• Citation: 359 S.W.2d 951
• Decision Date: 28 June 1962
• Docket Number: No. 6554,6554
• Parties: C. M. LANGFORD, Jr., et al., Appellants, v. B. F. DOUGLAS et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 951

359 S.W.2d 951

C. M. LANGFORD, Jr., et al., Appellants, v. B. F. DOUGLAS et al., Appellees.

No. 6554.

Court of Civil Appeals of Texas, Beaumont.

June 28, 1962.

Rehearing Denied Sept. 5, 1962.

Lawrence & Lawrence, Tyler, Bath, Turner & Lloyd, Henderson, Johnston & Johnston, Palestine, for appellants.

Norman, Rounsaville & Hassell, Jacksonville, Cecil C. Cammack, Bartesville, Okl., for appellees.

McNEILL, Justice.

Appellants filed suit in May 3, 1955 in the District Court of Anderson County against appellees. This suit was in trespass to try title and sought recovery of a mineral interest in a tract of land as well as cancellation of a deed and oil and gas lease, and removal of a cloud on appellants' title. Appellees answered by plea of not guilty, general denial and pleaded several Statutes of Limitation affecting land titles. The parties will be referred to hereinafter respectively as plaintiffs and defendants.

The cause was set for trial on September 26, 1955, February 6, 1956, and April 14, 1958, but each time was continued on agreement of the parties.

Although not set for trial, the presiding judge dismissed the cause for want of prosecution on October 19, 1960. No notice was given of this to any of the parties. On November 17, 1960 plaintiffs filed under oath what they termed their 'Motion to Reinstate' the case. On November 25, 1960, at the same term of court in which the case was dismissed, the presiding judge set aside the order of dismissal and reinstated the case. May 25, 1961, defendants filed motion to set aside the order reinstating the case. This motion urged two grounds: First, since the cause was originally dismissed on October 19, 1960, and plaintiff's motion to reinstate was not filed until November 17, 1960, and was not acted upon within thirty days from the date of the original order of dismissal, the order dismissing the cause became final and the court did not have jurisdiction to set it aside as was attempted to be done by order of November 25, 1960. Second, because defendants had no notice of plaintiffs' motion to reinstate the cause filed on November 17, 1960, and had no notice that the court was going to enter its order on November 25, 1960 granting plaintiffs' motion. Defendants' motion filed May 25, 1961, was heard by the presiding judge on August 4, 1961 and the order sustaining defendants' motion was rendered on September 18, 1961. The pertinent part of that order follows:

'On the 4th day of August, 1961, in the above entitled and numbered cause came on to be considered the motion of the defendants, W. S. DOUGLAS and ELSIE DOUGLAS, that the court set aside order of this District Court, Judge V. M. Johnston presiding, entered November 25, 1960, which order granted plaintiffs' motion to set aside the prior order of dismissal entered October 19, 1960; and all parties having appeared herein by counsel and the court having considered the pleadings made on this motion and heard evidence and argument of counsel in support of and against such motion, the court finds and is of the opinion that said order of the District Court herein, dated November 25, 1960, setting aside its order of dismissal, should be, and the same is, hereby set aside; and it is hereby decreed that said order of dismissal entered by the court on October 19, 1960, dismissing this case for want of prosecution, remain in full force and effect.'

Plaintiffs excepted to this action of the court and gave notice of appeal to the Court of Civil Appeals at Houston.

They first say that the trial court had jurisdiction of the cause when it...