Moglia v. Rios

• Decision Date: 13 February 1918
• Docket Number: (No. 5971.)
• Citation: 200 S.W. 1133
• Parties: MOGLIA v. RIOS et al.
• Court: Texas Court of Appeals

200 S.W. 1133

MOGLIA v. RIOS et al.

(No. 5971.)

Court of Civil Appeals of Texas. San Antonio.

February 13, 1918.

Appeal from District Court, Duval County; V. W. Taylor, Judge.

Suit by Lod Moglia against Antonio Rios and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Greer & Hamilton, of Laredo, for appellant. S. H. Woods, of Alice, and Hicks, Phelps, Dickson & Bobbitt, of San Antonio, for appellees.

MOURSUND, J.

This is a suit by Lod Moglia in trespass to try title to recover 640 acres of land in Duval county from Antonio Rios, his wife, Paula Zuniga De Rios, Epifania Martinez Zuniga, Ramon Zuniga, Savas Zuniga, and Jose Zuniga. During the trial plaintiff in open court abandoned his suit as to 200 acres claimed by Rios and wife as a homestead, and the trial proceeded as to 440 acres claimed by the defendants other than Antonio Rios, they being the widow and children of Pioquinto Zuniga, to whom such land had been conveyed by Rios and wife on January 8, 1914. Plaintiff's claim to the land is based upon a sheriff's deed, dated December 1, 1914, made by virtue of an alias execution issued out of the district court of Webb county on a judgment in favor of plaintiff against Rios and Esteben Leal for $856.87, in which an attachment lien was foreclosed against the land in controversy herein. The attachment was levied on January 15, 1914; the judgment obtained on May 4, 1914.

The cause was submitted upon a charge requested by plaintiff in which the issue left to the determination of the jury was whether Rios conveyed to Zuniga for the purpose of hindering and delaying plaintiff in the collection of his debt and whether Zuniga bought with knowledge of such intention. The jury returned a verdict in favor of defendants and judgment was entered in accordance therewith.

Appellant presents three assignments of error, in all of which it is contended that there is no evidence to support the verdict and judgment. As appellant requested and induced the court to submit the issue, thus taking the stand that there was evidence which required the submission thereof, he is in no position to complain of the charge directly or indirectly by contending there was in fact no testimony which would justify the submission of the issue. Having invited the submission of the issue, plaintiff is in no position to assail the finding of the jury. S. W. Tel. Co. v. Sheppard, 189 S. W. 799, and authorities therein cited.

However, we find the verdict was...