Maury v. Turner

• Decision Date: 08 November 1922
• Docket Number: (No. 323-3670.)
• Citation: 244 S.W. 809
• Parties: MAURY et al. v. TURNER et al.
• Court: Texas Supreme Court

244 S.W. 809

MAURY et al. v. TURNER et al.

(No. 323-3670.)

Commission of Appeals of Texas, Section B.

November 8, 1922.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by E. S. Turner and others against George P. Maury and others, to set aside a judgment and to cancel sheriff's deed under order of sale issued thereupon. From a judgment of the Court of Civil Appeals reversing the judgment of the district court and remanding the case for another trial, defendants bring error. Judgment of district court and Court of Civil Appeals reversed, and judgment rendered for plaintiffs, removing cloud on their title, but leaving rights held under certificate of special assessment unaffected.

See, also, 224 S. W. 255.

Ritchie & Ranspot, of Mineral Wells, for plaintiffs in error.

S. D. Goswick, of Mineral Wells, for defendants in error.

HAMILTON, J.

This is a proceeding brought by E. S. Turner and E. H. Turner, who reside in Palo Pinto county, state of Texas, William B. Turner and Ralph H. Turner, who reside in Lee county, state of New Mexico, Flora L. Bruce, joined by her husband, S. P. Bruce, who reside in Bell county, Tex., Frank L. Turner, Laura M. Johnson, joined by her husband, John Johnson, John W. Turner, and Eudora A. Turner (a feme sole), who reside in Dallas county, Tex., and Willie E. Hayes, joined by her husband, Richard S. Hayes, and Charlie L. Turner, who reside in Tarrant county, state of Texas, against J. W. McFarland and George P. Maury, to set aside a judgment rendered in cause No. 4699 in the district court of Palo Pinto county in favor of J. W. McFarland, and to cancel a sheriff's deed purporting to convey lot G, block 34, Wiggins' addition to Mineral Wells, to George P. Maury, purchaser of the lot under an order of sale issued by virtue of that judgment.

The suit terminating in the judgment here sought to be set aside was filed August 3, 1917, by J. W. McFarland as plaintiff against the "unknown owner" as defendant to collect the sum of $56.76, alleged to be due him on "a certificate of special assessment against the said unknown owner of the said lot" for that sum "executed and delivered to him by the mayor pro tem. and secretary of the city of Mineral Wells pursuant to its charter" for the "erection of concrete curbs and gutters" along the street on which the lot abuts. The petitioner prayed for citation by publication, judgment for his debt, interest, and attorney's fees, for foreclosure of his lien and for general relief. The judgment "decreed that J. W. McFarland do have and recover of and from said defendant, unknown owner of the property herein described, the sum of $62.73," and "that the lien created by the assessment proceedings be foreclosed." The judgment describes the property and orders the clerk to issue an order of sale. It also recites that "the defendant had been duly cited" by publication. At the sale Maury purchased the lot for $100.

On May 29, 1919, defendants in error, plaintiffs below, filed this suit, naming as defendants J. W. McFarland and George P. Maury, and praying for judgment setting aside and annulling the judgment rendered in cause No. 4699, above referred to, canceling the sheriff's deed to Maury, that they be quieted in their title to and possession of subdivision G, block 34, Wiggins addition to the city of Mineral Wells, Tex. Defendants in error alleged ownership of the property in themselves, and, as grounds for their action, pleaded gross failure to comply with the requirements of the statutes governing procedure in suits where service is by publication. Their whole case as urged is based on the contention that the service in that case was not sufficient to give the court jurisdiction to render the judgment under which the sale to Maury was made. They attached to their petition, as exhibits, certified copies of the citation and return.

Plaintiff in error Maury answered by general demurrer, special exceptions, general denial, and specially pleaded that he was the purchaser of the property for a valuable consideration without notice of any of the matters and things alleged in plaintiffs' petition, believing that he was acquiring a good title to the property under and by virtue of a valid judgment, and by way of cross-action he pleaded that he was the owner of the lands and premises described in plaintiffs' petition; that plaintiffs' claim of ownership casts a cloud upon defendants' title, and prays that he have judgment canceling and removing plaintiffs' claim, as a cloud upon his title; that he be quieted in his title and possession of the land and premises; for writ of possession, costs, and general relief.

McFarland answered by general demurrer and general denial.

The case was tried without a jury, and the court rendered judgment refusing to set aside the judgment rendered in the cause No. 4699 above mentioned, and rendered judgment "that defendant George P. Maury have judgment against plaintiffs (naming them) quieting defendant in his title and possession" of the property above described; that he have writ of possession, and that he be placed in possession of that property, as the law directs. The Court of Civil Appeals reversed the judgment of the district court and remanded the case.

Appellees, plaintiffs in error, urged, in the Court of Civil Appeals, that the court was without jurisdiction to hear and consider the appeal for the reason that no notice of appeal was given and entered of record in the court, as required by law, and insist here that the Court of Civil Appeals erred in assuming jurisdiction of the cause and in reversing and remanding it for the same reason.

The facts, as shown by the record, are that proper notice of appeal was given by plaintiffs at the time the judgment was pronounced, and that plaintiffs were given 90 days in which to file statement of facts and bills of exceptions, but the judgment filed and recorded failed to show either of these actions. Notation was made by the court on his docket as follows:

"4—10—20. Judgment for defendants, plaintiff excepts and gives notice of appeal to the Court of Civil Appeals for the Second Supreme Judicial District of Texas, at Fort Worth, 90 days granted in which to file statement of facts and bills of exceptions."

After the close of the term, April 10, 1920, plaintiffs filed a motion, after notice to defendants, setting up the facts and praying the court to supply and include the omitted notice of appeal and granting of time for filing bills of exception. The motion was granted by the judge in chambers. The judge restated the judgment, including the notice of appeal and granting of time, and instructed the clerk of the district court of Palo Pinto county to enter it nunc pro tunc as the correct judgment in the case. That proceeding is of no importance in determining whether the Court of Civil Appeals had jurisdiction of the case or not.

"The statute provides, that an appeal may be taken by giving notice in open court and by filing bond; and while it also makes it the duty of the clerk to enter it upon the minutes, the structure of the language employed indicates, as we think, that such entry was not * * * essential to the exercise of the jurisdiction of the appellate court. * * * The jurisdiction therefore depends upon the fact of notice, and not upon the record of the fact." Western Union Telegraph Co. v. O'Keefe, 87 Tex. 423, 28 S. W. 945.

Article 1593, Revised Civil Statutes 1911, referring to Courts of Civil Appeals, provides:

"The said courts shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of...