Miller & Vidor Lumber Co. v. Williamson

• Decision Date: 11 February 1914
• Citation: 164 S.W. 440
• Parties: MILLER & VIDOR LUMBER CO. v. WILLIAMSON et al.
• Court: Texas Court of Appeals

164 S.W. 440

MILLER & VIDOR LUMBER CO. v. WILLIAMSON et al.

Court of Civil Appeals of Texas. Galveston.

February 11, 1914.

Rehearing Denied March 5, 1914.

Appeal from District Court, Orange County; A. E. Davis, Judge.

Suit by the Miller & Vidor Lumber Company against P. P. Williamson and others. From a judgment of abatement and dismissal, plaintiff appeals. Affirmed.

Carlton, Townes & Townes and R. E. Hardwicke, all of Beaumont, for appellant. Smith & Blackshear, of Jasper, and John B. Warren, of Houston, for appellees.

McMEANS, J.

On March 15, 1913, P. P. Williamson, E. I. Williamson, and R. C. Conn brought a suit in the district court of Jasper county against the Miller & Vidor Lumber Company to recover the title to and possession of 160 acres of land, part of the T. & N. O. section No. 82, lying partly in Jasper county and partly in Orange county. The land was described in the plaintiffs' petition by the following field notes: "Beginning at the southeast corner of said section 82; thence north with the east line of said section 82, 950 varas, to stake for corner a sweet gum brs. south 42 deg. west 3 varas and a pine brs. north 55 deg. east 8 varas; thence west, 1,183 varas, stake for corner from which a pine brs. N. 36 deg. W. 7 varas, and a pine brs. south 51 deg. east 3½ varas; thence south 530 varas, stake for corner in the Jasper and Orange county line; thence east with said line 522 varas to the N. E. corner of Wm. Williamson survey; thence south 420 varas, stake for corner; thence east with the south line of said section 665 varas to the place of beginning, containing 160 acres of land." Citation was issued and served on the defendant at 3 p. m. March 19, 1913. On March 19, 1913, the Miller & Vidor Lumber Company brought suit in the district court of Orange county against P. P. Williamson, E. I. Williamson, and R. C. Conn, plaintiffs in the Jasper county suit, to recover the title to and possession of 160 acres of land, part of the T. & N. O. section No. 82, lying partly in Jasper county and partly in Orange county. The land was described in plaintiff's petition by the following field notes: "Beginning at the southeast corner of T. & N. O. section No. 82, on the west boundary line of the Ed. Hurst No. 10 survey, from which a pine stump bears north 62 west 27 varas distant; thence west 685 varas to the northeast corner of the Wm. Williamson survey and southeast corner of Wm. Williams, stake for corner from which a pine 18 inches in diameter bears north 1/2 varas, pin oak 14 inches in diameter bears south 59 west 10½ varas distant, and a sweet gum 8 inches in diameter bears south 45 east 7½ varas distant; thence north on the east boundary line of Wm. Williams at 425 varas the Orange and Jasper county line, at 846 varas stake for corner, northeast corner of Wm. Williams; thence west 916 varas to stake for corner in north boundary line of Wm. Williams; thence north 144 varas stake for corner; thence east 1,483 varas stake for corner in east boundary line of T. & N. O. section No. 82; thence south 565 varas to county line, Orange and Jasper counties; thence continuing at 990 varas place of beginning."

The district court of Orange county convened in advance of the district court of Jasper county, and when the Orange county suit was reached the defendants filed and presented a plea in abatement, setting up the pendency of the suit between the same parties in Jasper county, and this plea was sustained and the Orange county suit dismissed, and from the judgment of dismissal the plaintiff Miller & Vidor Lumber Company has appealed.

It is proper to here state that at the time of filing the plea in abatement the defendants in the Orange county suit, not waiving their plea, filed a disclaimer as to all the land embraced in and described by the field notes in the Orange county suit that was not included in the field notes describing the land sued for by them in the Jasper county suit. A comparison of the field notes will disclose that, while the tract sued for in both suits is substantially the same, the description given in the Jasper county suit covered a small acreage not described in the field notes set out in the petition in the Orange county suit, and the description given in the Orange county suit covered a small amount of land not described in the field notes set out in the petition in the Jasper county suit. Just what number of acres that was included in the one and not included in the other the record does not disclose. No statement of facts accompanies the record, but the case is brought up on the court's findings of fact filed at the request of the appellant; and from these findings we take the following: "Sixth. I find that the plaintiff in the suit in the district court of Orange county is the defendant in the suit in the district court of Jasper county; that the defendants in the suit in the district court of Orange county are the plaintiffs in the suit in the district court of Jasper county. Seventh. I find as shown by the respective petitions, which are hereinafter copied, that the greater part of the land embraced in the two suits is the same; however, a portion of the land involved in the Jasper county suit is not involved in the suit in Orange county, and a portion of the land involved in the suit in Orange county is not involved in the suit in Jasper county."

The court's conclusion of law is as follows: "I conclude as a matter of law that while the position of the parties in the two suits mentioned in the foregoing findings of fact are reversed, and while there are some minor discrepancies between the two tracts of land described in the respective petitions, nevertheless, in legal contemplation, the two suits are between the same parties and upon the same cause of action. I therefore conclude that the present suit brought in the district court of Orange county should be abated and dismissed as prayed for," etc.

By its first assignment of error appellant complains that the court erred in overruling its motion for new trial on the third...