McPhaul v. Byrd

• Decision Date: 20 February 1915
• Docket Number: (No. 728.)
• Citation: 174 S.W. 644
• Parties: McPHAUL et al. v. BYRD et al.
• Court: Texas Court of Appeals

174 S.W. 644

McPHAUL et al. v. BYRD et al.

(No. 728.)

Court of Civil Appeals of Texas. Amarillo.

February 20, 1915.

Error from District Court, Terry County; W. R. Spencer, Judge.

Suit by H. C. Byrd and others against L. W. McPhaul and others. From the judgment rendered, L. W. McPhaul brings error. Reversed.

Bean & Klett, of Lubbock, for plaintiff in error. Geo. W. Neill, of Brownfield, and W. F. Schenck, of Lubbock, for defendants in error.

HUFF, C. J.

The defendant in error H. C. Byrd moves to dismiss this appeal because the court has not jurisdiction of all the parties to the judgment. The suit was originally brought by Byrd against A. M. Ellis, L. W. McPhaul, A. E. McPhaul, and J. O. King, on three vendor's lien notes for $97.50 each, together with interest and attorney's fees. Note No. 4, given in part payment of section No. 22, block D-11, certificate No. 27, S. K. & K., 640 acres, and notes Nos. 3 and 4 in part payment of section 8, block D-14, certificate 217, grantee Chicago & Milwaukee Railway Company, 640 acres. It is alleged these notes are unpaid and are all remaining of the series unpaid. They were each given by Ellis February 15, 1909, to Byrd, in part payment of the purchase money due on the respective tracts of land above named. It is alleged and shown that Ellis, at the institution of the suit, was a nonresident and was served by notice as such; that J. O. King purchased section 8, block D-14, from Ellis, and assumed the payment of Nos. 3 and 4, above mentioned; that L. W. and A. E. McPhaul purchased from Ellis section 22, block D-11, and assumed payment of note No. 4 thereon. Judgment was taken by default against all the defendants except A. E. McPhaul, who was dismissed with his costs. The plaintiff, in his petition for writ of error, does not bring it against A. E. McPhaul, or join him in it. We have concluded that the proceedings do not show that A. E. McPhaul was adversely interested to the plaintiff in error, and under Weems v. Watson, 91 Tex. 35, 40 S. W. 722-724, the writ of error should not be dismissed on that ground. Wood v. Cahill, 21 Tex. Civ. App. 38, 50 S. W. 1071; McDonald v. Denton, 132 S. W. 823-827; Blackman v. Harry, 35 S. W. 290; Llewellyn v. Ellis, 102 Tex. 297, 116 S. W. 42; Slayton v. Horsey, 97 Tex. 341, 78 S. W. 919; Martin v. Lapowski, 11 Tex. Civ. App. 690, 33 S. W. 300.

The defendant in error also moves to dismiss the writ of error because the petition for the writ of error misdescribes the judgment. The ground therefor is that it describes one part of the land upon which foreclosure was decreed as section 8 in block D-11, while the block number is described in the judgment as block D-14. The other section 22, block D-11, is properly described. The judgment is otherwise properly described, giving its date, amount for which rendered, the court in which rendered, the parties in the judgment, showing it was a decree of foreclosure, the section numbers of the land, the county where situated, the number of the suit and reference to the minute book of said court for the judgment. The petition must describe the judgment with sufficient accuracy to notify the defendant with reasonable certainty what judgment it is proposed to reverse. Cochrane v. Day, 27 Tex. 385. This, we think, the petition does in this case. It has been stated that an important description of the judgment is its date; and, where the date given on the appeal was a wrong one, it has been held by our Supreme Court that this will not dismiss the appeal if the judgment is otherwise properly described. Murphy v. Williams, 103 Tex. 155, 124 S. W. 900; So. Pac. Co. v. Stanley, 76 Tex. 418, 13 S. W. 480. Where the amount of the judgment is not correctly given, if properly described otherwise so as to properly identify the judgment appealed from, the case will not be dismissed. Railway Co. v. Sales, 31 S. W. 325; Burger v. Weatherby, 41 Tex. Civ. App. 462, 91 S. W. 250; Warren v. Marberry, 85 Tex. 193, 19 S. W. 994.

The defendant in error, at the time of filing this motion, made an appearance by filing an unqualified brief in the case. It thereby appears the petition was sufficient to apprise him of what judgment was sought to be reversed. The order of setting the case for submission was made January 16, 1915, setting the case for February 13, 1915, and it was submitted on that day by brief of both parties. We now find the motion with the papers, filed the 12th day of February, the day before submission, and on the same day that defendant in error filed his brief. It is evident that no notice was given to plaintiff in error, such as required by the rules, and we find no waiver of notice. We think, on the ground to dismiss last above set out, that the motion to dismiss is too late. Ricker v. Collins, 81 Tex. 662, 17 S. W. 378; Talbert v. Barbour, 16 Tex. Civ. App. 63, 40 S. W. 187; Ferguson v. Beaumont, etc., 154 S. W. 303.

We do not wish to be understood as holding that where a party whose interest is adverse to the plaintiff in error, and who is not joined in the petition for the writ, a failure to file a motion to dismiss for that cause would confer jurisdiction on the appellate court, or that the court would not have the right and power to dismiss on its own motion. Notice of appeal in the court below and a motion for a new trial therein is not required, where the case is brought up by petition and writ of error, in order to confer jurisdiction on the appellate court. It is the petition, citation, and bond that gives the court jurisdiction. Notice of appeal is only required in a direct appeal from the judgment, the purpose of which appears to be of apprising the opposite party that an appeal will be taken. Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S. W. 945. The petition for writ of error and the bond answer that purpose in case of an appeal by writ of error, and confer jurisdiction on the appellate court. Vineyard v. McCombs, 100 Tex. 318, 99 S. W. 544; Buckler v. Turbeville, 17 Tex. Civ. App. 120, 43 S. W. 810.

The failure to file assignments of error in the trial court will not require us to dismiss the appeal. The motion of defendant in error will be overruled.

Upon the appeal by the plaintiff in error we find no assignments of error in the record. In plaintiff's brief he has presented an assignment of error, but this is not in the record. We cannot consider this assignment unless there is shown thereby fundamental error apparent of record. We can only determine from the record whether the pleading will support the judgment, and whether this court has acquired jurisdiction. Walker v. Hardin, 142 S. W. 640; Peacock v. Moore, 125 S. W. 943.

Byrd brought this suit against Ellis, King, and McPhaul on three vendor's lien notes for $97.50 each, together with interest and attorney's fees. In paragraph 1 he alleges that he sold to Ellis section 8, block D-14, on February 15, 1909, and in part payment Ellis executed four vendor's lien notes for $97.50 each, to secure which a vendor's lien was retained. In paragraph 2 he alleged on that day he sold to Ellis section 22, block D-11, retaining the vendor's lien to secure four notes for $97.50 each. In paragraph 3 he alleges the retention of the vendor's lien to secure the notes. In the fourth paragraph it is alleged Ellis and wife conveyed on the 2d day of November, 1910, section 8, block D-14, to J. O. King, in which King assumed the payment of notes 2, 3, and 4, and further alleged that he had reason to believe that King had...