Mccoy's Heirs v. Jones

• Decision Date: 01 January 1853
• Citation: McCoy's Heirs v. Jones, 9 Tex. 363 (Tex. 1853)
• Parties: MCCOY'S HEIRS v. JONES.
• Court: Texas Supreme Court

9 Tex. 363

MCCOY'S HEIRS

v.JONES.

Supreme Court of Texas.

1853.

Where the judgment of the District Court is for specific real estate, the bond on appeal or writ of error is not required to be for a greater amount than is sufficient to secure the costs of the suit.

A continuance to a future day of the term cannot be claimed as a matter of right. When a cause is called for trial, in its order, it is incumbent on the parties to try or continue for the term.

An objection to the admissibility of evidence comes too late in arrest of judgment, even where the trial was ex parte. But, quere? Whether the trial could be said to have been ex parte in this case.

Repeated decisions of this court have settled that where the defendant has pleaded in reconvention, the plaintiff cannot deprive him of his right to an adjudication upon the matters embraced in his plea by taking a nonsuit. And this rule applies to a case where the plaintiff sues to rescind a contract for the sale of land, and the defendant admits the contract and prays for its specific performance.

Error from Gonzales. This was an action by the widow and heirs of Joseph McCoy against Levi Jones, to rescind a contract for the sale of McCoy's headright league. It was before the Supreme Court on a former occasion, and the facts, so far as they were disclosed by the pleadings, will be found in the report of the case in 3 Tex. R., 349. It was agreed by the attorneys of the parties, by agreement filed October 18th, 1849, that S. B. Conley should act as special judge, or, in case of his failure or refusal, that A. S. Cunningham or W. H. Stewart should do so, the district judge being incompetent to sit in the case. The next entry was at April Term, 1850: “Come the parties by their attorneys, and William H. Stewart, esq., special judge by agreement, having taken the seat as judge, his Honor, Fielding Jones, district judge, being interested in the cause; whereupon the defendant asked and obtained leave to file an amended answer; upon which being done, the plaintiff's attorney asked leave of the court to set the cause for a particular day, to enable him to examine the answer and file amended pleadings if necessary, which the court refused, but granted him half an hour to examine the pleas and file others, and ruled the parties to trial thereafter; whereupon the plaintiffs by attorney asked leave to take a nonsuit, which the court refused; to all which rulings the plaintiff's attorney excepted, and the party defendant proceeded ex parte with the case before the following jury, to wit:” &c. It appeared also that the case was called in the afternoon of the first day of the term.

The defendant then read all the pleadings in the case; gave in evidence the original contract, by which McCoy sold to Jones the league of land in controversy, and another half league to which McCoy undertook to perfect his title, in consideration of which Jones paid $1,000 in hand and gave his note for $1,625, payable to McCoy at the house of Logan and Raguet, at Nacogdoches, sixty days after date. The note and agreement were both dated 17th day of April, 1836. The contract stipulated that the $1,625 should be payable sixty days after date or as soon as a good and indefeasible title for the said lands should be made; for the execution of general warranty deeds; that, in case the title to the half league could not be perfected by McCoy, Jones was to pay him $1,000 instead of the $1,625. The plaintiff then proved by two depositions of Oscar Farish, taken in answer to two sets of interrogatories, of only one of which notice appeared to have been given to the opposite party, that Jones left Columbia about the 1st of June, 1836, for Nacogdoches, to pay his note to McCoy and receive his titles; that he had the money; that he, Farish, accompanied him; that they arrived at Nacogdoches before the...