Ledbetter v. Martinez

• Decision Date: 09 January 1929
• Docket Number: (No. 7276.)
• Citation: 12 S.W.2d 1042
• Parties: LEDBETTER et al. v. MARTINEZ.
• Court: Texas Court of Appeals

Page 1042

12 S.W.2d 1042

LEDBETTER et al. v. MARTINEZ.

(No. 7276.)

Court of Civil Appeals of Texas. Austin.

January 9, 1929.

Rehearing Denied January 23, 1929.

Appeal from District Court, Dallas County; R. T. Brown, Judge.

Action by Mrs. Louise Ledbetter and husband against P. P. Martinez. Judgment for defendant, and plaintiffs appeal. Reversed, and remanded for new trial.

House & Wilson, of Dallas, for appellants.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellee.

BLAIR, J.

Heretofore we dismissed this cause for want of jurisdiction, holding that appellants failed to comply with article 2266, R. S. 1925, in that they made proof of their inability to pay costs of appeal "before the court trying the case" after the adjournment of the term at which the case was tried. In this we followed the general language used in the cases of Wooldridge v. Roller, 52 Tex. 452; Hearne v. Prendergast, 61 Tex. 627; Graves v. Horn, 89 Tex. 77, 33 S. W. 332; Harris v. Davis, Agent (Tex. Civ. App.) 267 S. W. 1045, and other cases which hold in general terms that proof of inability to pay costs of appeal when made "before the court trying the case" must be made while the court is in session and during the same term at which the case is tried. A more careful examination of these cases shows, however, that in each instance the proof was made before the "judge" of the court trying the case or some other officer, and after the adjournment of the term at which the case was tried and while the court which tried the case was in vacation. We must therefore construe the general language used in the light of the facts of the case in which it was used. When we do so, these cases simply make a distinction between a hearing on the question of inability to pay costs of appeal before the "judge" of the court trying the case after adjournment and during vacation, and a hearing "before the court trying the case" while "in session." The reason for this distinction is predicated upon the rule that the question of inability to pay costs of appeal is one for judicial ascertainment, and therefore not determinable by the judge of the court after the adjournment of the term at which the case is tried and while the court is in vacation.

But we have a different state of facts here. Here the "court trying the case" reconvened for a new term immediately upon the adjournment of the term at which the case was tried, and appellants made their proof of inability to pay costs of appeal at this subsequent term and within the time prescribed by the statutes for the making of such proof and for filing the affidavit in lieu of a cost bond. We must therefore conclude that appellants made proof of their inability to pay costs of appeal "before the court trying the case" while "in session," in open court, within the time prescribed by law and as required by article 2266. Under such facts the following cases hold that an appeal in forma pauperis is perfected: Cox v. Hightower (Tex. Civ. App.) 47 S. W. 1049; Ostrom v. Arnold (Tex. Civ. App.) 58 S. W. 632; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659; Hugle v. Fritz Motor Co. (Tex. Com. App.) 6 S.W.(2d) 84. Having reached this conclusion, we set aside our former order dismissing the case and reinstate same for a hearing on the merits.

Passing to the merits, we adopt appellee's statement of the nature of the suit as follows: "The appellants, Mrs. Louise Ledbetter and R. L. Ledbetter, husband and wife, sought to recover 80 acres of land out of the Harvey G. Wilson Survey, in Dallas county, Texas, and to cancel certain instruments affecting the title to this land. The first and principal instrument thus sought to be cancelled is a deed of trust covering the land, executed by G. B. Pierce to James Jackson, Trustee, on Sept. 16, 1920, which secured a note for $3,500.00 executed by Pierce to the order of R. L. Ledbetter. This note was transferred by Ledbetter to J. M. Cochran; by Cochran to the Dallas Morris Plan Bank, and by such bank to P. P. Martinez, appellee herein. The second important instrument for which cancellation is sought is the Trustee's Deed from James Jackson, Trustee to P. P. Martinez, dated May 8, 1923, executed pursuant to the powers contained in the deed of trust from Ledbetter to Jackson, hereinabove mentioned. The grounds for the relief for which appellants pray are in substance that the land in controversy was, on September 16, 1920, the homestead of the appellants and that the $3,500.00 note secured by the deed of trust to Jackson was a fictitious vendor's lien note, created in a conveyance from appellants to Mrs. Ella Ledbetter, a widow, and mother of R. L. Ledbetter, to G. B. Pierce. It is alleged that this conveyance was made solely for the purpose of creating a fictitious lien note and that Mrs. Louise Ledbetter was induced to sign the instrument through fraudulent representations of R. L. Ledbetter and G. B. Pierce. Appellants further allege that...