McClelland v. Moore

• Decision Date: 01 January 1877
• Citation: 48 Tex. 355
• Parties: SAMUEL K. MCCLELLAND, ADM'R, v. JOHN L. MOORE.
• Court: Texas Supreme Court

48 Tex. 355

SAMUEL K. MCCLELLAND, ADM'R,

v.JOHN L. MOORE.

Supreme Court of Texas.

1877.

APPEAL from Shelby. Tried below before the Hon. A. J. Booty.

September 15, 1866, S. K. McClelland, as administrator of the estate of Zachariah Hinton, sued John L. Moore for one thousand dollars, balance unpaid of the purchase-money for 913 acres of land sold defendant by plaintiff's intestate.

March 12, 1867, defendant pleaded in reconvention a breach of the warranty of title in the deed made by Hinton to defendant, in that, at the time of the sale, 203 acres of the tract sold was vacant land, and that to secure it defendant had located and procured a patent for it, the value of which was greater than the amount sued for, &c.

July 7, 1874, the case was tried, and a verdict rendered for plaintiff for “one thousand dollars, less three hundred dollars allowed for saving said land.”

Upon this verdict, judgment was rendered. A motion by defendant for new trial was overruled, and defendant Moore gave notice of appeal.

The appeal was dismissed for want of an assignment of error.

March 17, 1875, N. S. Moore, as executor of John L. Moore, the defendant, filed a petition for writ of error. In the petition, it was alleged that John W. Hinton was administrator de bonis non of the estate of Z. Hinton. An assignment of errors was filed with the petition. A cost bond was filed and approved 3d of May, 1875.

July 14, 1875, N. S. Moore filed a motion in the District Court to amend and set aside the judgment of July 7, 1874, alleging that the defendant John L. Moore departed this life December 11, 1873, while the suit was pending, leaving a will, which was duly admitted to probate; that under said will, the said N. S. Moore, December 29, 1873, qualified as executor, and that he, as executor, had never been made a party to the suit.

That S. K. McClelland, the original plaintiff, had also died, and that in March, 1871, John W. Hinton had been appointed administrator de bonis non of the estate of Z. Hinton, but was never made a party plaintiff to the suit.

Wherefore, it was insisted, the judgment was void for want of parties. The motion was accompanied by affidavits showing the facts alleged.

July 22, John W. Hinton, administrator de bonis non of Z. Hinton, excepted to the sufficiency of the motion to set aside the judgment, and denied the facts alleged therein.

November 5, 1875, N. S. Moore, administrator in the District Court, filed a dismissal or abandonment of his writ of error.

On same day, John W. Hinton pleaded in defense, against the motion, that the writ of error had been perfected, and the jurisdiction of the Supreme Court over the matter; also alleged that the death of J. L. Moore, the original defendant, had been, in 1874, suggested, and the entry made on the judge's docket, with leave to make himself a party defendant; and that N. S. Moore, as administrator of the defendant, and John W. Hinton, as plaintiff, were present in court on the trial, actively aiding as parties, employing lawyers, &c., in the case. He also asked that the judgment of July 7, 1874, be amended by the judge's docket, and in accordance with the facts as to the parties.

November 6, 1875, the court submitted the facts controverted in the motion to a jury, and, by the verdict, it was ascertained that S. K. McClelland, the plaintiff, was dead at the rendition of the judgment; that the defendant Moore was also dead; that John W. Hinton was administrator de bonis non of the estate of Z. Hinton; that said John W. Hinton was present, acting and participating, in the manner of a plaintiff, at the trial; that N. S. Moore was administrator of J. L. Moore, the defendant; that N. S. Moore suggested the death of defendant, and asked to be made party, which suggestion was entered on the judge's docket, but was not carried into the minutes.

Upon this verdict, the court set aside the judgment of July 7, 1874.

November 6, 1875, death of plaintiff McClelland suggested, and John W. Hinton, administrator de bonis non, was made a party plaintiff. The death of John L. Moore, defendant, was suggested, and N. S. Moore, executor, was made party defendant.

The parties amended their pleadings, and the cause was tried at January Term, 1877, by the court, without the intervention of a jury.

The facts in evidence were, substantially, that Z. Hinton sold J. L. Moore, by warranty deed, 913 acres of land, described in the deed, for four thousand dollars, of which one thousand remained unpaid; that 203 acres of the land were located by a certificate in name of J. L. Rounds, and that the field-notes and certificate were not returned to the General Land Office, as required by law, and that Moore relocated and obtained a patent therefor; that the 203 acres were worth five dollars per acre--double the value of any other like quantity of the tract sold; that Moore entered into possession under the deed, and was never dispossessed.

There were objections taken to a land-office copy of the patent introduced by defendant, affidavit having been made that he could not produce the original.

The court rendered judgment for the defendant. Motion for new trial was overruled, and the plaintiff appealed.

The errors assigned sufficiently appear by the opinion.

A. M. Carter, for appellant.--The District Court should have corrected and amended the judgment rendered on the 7th of July, 1874. (Swift v. Faris, 11 Tex., 19;Frosch v. Schlumpf, 2 Tex., 422;Richardson v. Ellett, 10 Tex., 191;Trammell v. Trammell, 25 Tex. Supp., 261;Bank v. Seymour, 14 Johns., 219.) In New York, the omission from a decree of any matter which, if applied for on the hearing, would have been granted as a matter of course, “as necessary and proper” to carry into effect the decision of the court, will be supplied on motion. (Gardner v. Dering, 2 Edw. Ch., 131;Ray v. Connor, 3 Edw. Ch., 478;Rogers v. Rogers, 1 Paige Ch., 188.)

In such case, the omission will be corrected by a distinct order, without making any change upon the decree. (Clark v. Hall, 7 Paige Ch., 382;Sprague v. Jones, 9 Paige Ch., 395.)

Nicholas S. Moore's motion should not have prevailed, because he had had an opportunity to defend his testator's cause, and did in fact defend the cause, was in court, had counsel, &c.; and the party asking that a judgment be vacated must show merits and want of laches; (Freeman on Judgments, sec. 102;) and by appealing the cause he waived the irregularity. (Jenkins v. Esterly, 24 Wis., 340.)

After a mandate, no rehearing has ever been granted in the House of Lords. (Burnas v. Donegan, 3 Dow. P. C., 157.) And on a subsequent appeal, nothing is brought up but the proceedings subsequent to the mandate. (Himely v. Rose, 5 Cr., 316; Browder v. M'Arthur, 7 Wheat., 58, 59; The Santa Maria, 10 Wheat., 443;Chambers v. Hodges, 3 Tex., 520.)

It is too plain for any argument, that the certified copy of the patent was improperly admitted in evidence. (Paschal's Dig., art. 3716.) The loss of the original was never established. There was no proof that there ever was any patent to the land in controversy in existence.

We do not think the District Court had jurisdiction to render the judgment it did render on the 5th of November, 1875, because the matters were then properly cognizable by our Supreme Court, as Nicholas S. Moore had filed his petition for writ of error, and had given bond and assigned errors, and Z. Hinton's administrator had accepted service of said petition in error.

It is true, that after the writ of error was thus perfected, the plaintiff in error endeavored to dismiss the writ of error in the Supreme Court, by applying to the District Court. The Supreme Court could award cost in dismissing plaintiff's writ of error, but the District Court could not do either; but by the final judgment, rendered on the 20th day of March, 1877, compels appellant to pay all “cost due the officers of court in this suit expended.” Now, can this judgment be supported by law or equity? Certainly not. * *

Drury Field, for appellee.--The action of the court, in granting a new trial, is sanctioned by the practice of the courts of this State, and so well settled and approved by the decisions of this court as not now to be considered an open question. (McKean v. Ziller, 9 Tex., 59;Gross v. McClaran, 8 Tex., 341;Goss v. McClaren, 17 Tex., 120;Caperton v. Wanslow, 18 Tex., 132;Davis v. Terry, 33 Tex., 426;Seguin v. Maverick, 24 Tex., 537.) On authority of the cases above cited, the judgment of the court, on the application for a new trial, is amply sustained. And it is urged that the court having given judgment on the application for new trial, every presumption obtains in favor of the correctness of its action in the premises. (Withers v. Patterson, 27 Tex., 494, 502.)

Under a recent decision of this court, it was held, that the presumptions that obtain to support the finding of a jury will apply to the judgment of the court deciding the issues of facts. (Rich v. Ferguson, 45 Tex., 396.)

MOORE, ASSOCIATE JUSTICE.

The judgment in this case of the 7th of July, 1874, was unquestionably erroneous. Both plaintiff and defendant were dead when the...