Marshall v. Magness

• Decision Date: 16 April 1919
• Docket Number: (No. 1530.)
• Citation: 211 S.W. 541
• Parties: MARSHALL et al. v. MAGNESS.
• Court: Texas Court of Appeals

211 S.W. 541

MARSHALL et al. v. MAGNESS.

(No. 1530.)

Court of Civil Appeals of Texas. Amarillo.

April 16, 1919.

Appeal from District Court, Hale County; R. C. Joiner, Judge.

Action by Frank Marshall and another against T. F. Magness. From a judgment in their favor for less relief than demanded, plaintiffs appeal. Reversed and remanded.

Y. W. Holmes, of Comanche, and M. J. Baird, of Plainview, for appellants.

Kinder & Russel and A. B. Martin, all of Plainview, for appellee.

HUFF, C. J.

The appellants, Marshall and Smelzer, brought this action against appellee Magnes, and in their petition allege: That prior to June 1, 1917, they were the owners and had contracted to purchase, and were entitled to the possession of, a section of land, designating it, from June 1, 1917, up to and since November 1, 1917, except in so far as defendant was entitled to use the same as thereinafter set out. That Marshall had purchased the west half, and Smelzer the east half, of the section. That a long time prior to June 1, 1917, defendant had the section leased from a prior owner, subject to sale, and when plaintiffs contracted for the land and were delivering possession thereof the former owner refunded to defendant the unearned lease money, which he accepted. "That on said June 1, 1917, defendant still having his cattle on said land desired to lease said section of land from these plaintiffs, and it was then and there agreed by plaintiffs jointly and the defendant that he should have the reusal of said grass for grazing purposes, without agreeing to any particular time, and the defendant then and there agreed to come up to see plaintiffs the next week for a final agreement as to the price, but he did not come then, nor at any other time, and continued to pasture the land with plaintiffs' knowledge and consent until November 1, 1917." They allege the number of cattle and horses pastured on the land, and that when he began using the land there was a good coat of grass, and that it was closely eaten off when he vacated. It is also alleged that the fair market value for pasturing was $1 per head for cattle and $1.50 for mules and horses per head per month, a total of $185 per month. By the fourth paragraph it is alleged: That when they purchased the land, June 1st, there was on the land "located around part of the borders of same along the west north and south half of the east boundaries of said section, and which was necessary to an inclosure of said section of land, a fence." That appellants paid for the fence with the land and had no sort of notice of any claim thereto by appellee. That there were 2½ miles of fence and of the real value of $238, there being no market value. "They show that just before the termination of said term, November 1st, defendant unlawfully, and without plaintiffs' consent, removed said fence from said land, claiming same as his own because he placed it there," to appellants' damage, etc.

The defendant answered by general exceptions and special exception: (1) That there was a misjoinder of causes of action as shown by the petition. That the damages for removal of fence and for use of grass and pasturage show to be unrelated transactions accruing at different times and of a different character. (2) That it appears from the petition there was a misjoinder of parties plaintiff, in that no community interest or joint liability was alleged and no facts which would justify the joinder of the plaintiffs. (3) That there was no proper measure of damages alleged. They also answered by general denial, and specially defendant admitted he used the grass under his former lease with the former owner and admitted a liability of $75 which he tendered into court; that the fence was placed on the land by himself with the consent of the owner and at his request and was paid for by defendant and was his personal property, of which plaintiffs had due and full notice before their purchase. The defendant also pleaded in abatement, setting up: That Marshall purchased the west half and Smelzer the east half, of the section, and about 1½ miles of the fence stood on Marshall's and the balance on Smelzer's land. That there was no joint ownership of the section or in either half. That separate deeds were made to each party to his respective tract of land. That neither party was interested in the removal of the fence from the land of the other and suffered no damages thereby. That neither party had any community of interest in the grass, but was only interested in the grass on his particular half section and no other. That the liability of defendant is several and not joint, and the remedy in favor of either plaintiff is several and not joint. There was a prayer for abatement, etc.

The order entered upon the exceptions and plea in abatement is to the effect that the law is for the defendant as to joinder of causes of action, but against him as to misjoinder of parties plaintiff. Both parties excepted to this ruling. The cause, however, does not appear to have been in fact dismissed or abated, but proceeded to judgment in which it is recited that exceptions 1 and 2 ought to be sustained in so far as they relate to the fence as set out in paragraph 4, which was ordered to be stricken from the answer, but, in so far as they relate to the remainder of the cause of action for grass, the...