Montgomery v. Huff

• Decision Date: 14 November 1928
• Docket Number: (No. 3109.)
• Citation: 11 S.W.2d 237
• Parties: MONTGOMERY v. HUFF.
• Court: Texas Court of Appeals

11 S.W.2d 237

MONTGOMERY v. HUFF.

(No. 3109.)

Court of Civil Appeals of Texas. Amarillo.

November 14, 1928.

Rehearing Denied December 5, 1928.

Appeal from District Court, Wichita County; E. G. Thornton, Judge.

R. E. Huff, one of the defendants in the case of Trueheart v. Montgomery, filed a motion to amend and correct a judgment rendered in that case, making Mrs. Charlotte V. T. Montgomery defendant in the motion. From a judgment granting the motion, defendant appeals. Reversed and rendered.

J. A. Lantz and H. O. Williams, both of Wichita Falls, for appellant.

Carrigan, Britain, Morgan & King, E. R. Surles, and H. R. Wilson, all of Wichita Falls, for appellee.

HALL, C. J.

On December 2, 1927, R. E. Huff, as one of the defendants in the case of Trueheart v. Montgomery et al., No. 3937 upon the docket of the Thirtieth judicial district court of Wichita county, filed his motion in that case for the purposes of amending and correcting a judgment rendered in that court in 1911, making Mrs. Charlotte V. T. Montgomery, the sole devisee under the last will and testament of her deceased husband, R. E. Montgomery, defendant in the motion.

The substance of the allegations in his motion is: That the above entitled and numbered cause was a suit wherein H. M. Trueheart was plaintiff and R. E. Montgomery and numerous other parties were defendants and John Adriance was intervener. That on the 1st day of March, 1911, in said cause No. 3937, the court entered its interlocutory judgment decreeing that the several parties in said suit had certain interests in numerous town lots in Wichita Falls, described in the judgment. That said judgment recites in part as follows:

"And it further appearing to the court that the plaintiff and intervener and defendant Myles O'Reilly are the owners of an undivided interest in the following described property, to-wit: All that part of Section 15, John A. Scott Survey, in Wichita County, Texas, which lies between the platted lots and blocks in said city on the south side of the Wichita River, and the platted lots and blocks on the north side of said River, as shown by the plat in record book E, page 264, of the Deed Records of said County; excepting, however, only Blocks G. U. F. and FS and Block T, according to said plat as above described; and also excepting the bed of the Wichita River; and that the interest of plaintiff, intervener and defendant Myles O'Reilly therein, is 15/64 of 45 per cent thereof; and that all the remaining interests therein is owned by defendant R. E. Montgomery and that none of the other parties to this suit have any interest therein and that R. E. Huff and W. M. McGregor own Block T on both sides of said River, as shown by the plat above referred to."

Movant further alleges that in said interlocutory order and by subsequent orders said court appointed three commissioners to partition the lands described in the judgment, including the lands described in the paragraph above quoted, among the owners thereof, according to the directions contained in said interlocutory judgment; and, in pursuance of such instructions, said commissioners did proceed to partition and distribute said lands among the several owners thereof and awarded to defendant R. E. Montgomery certain specific lands described in said report; the language of said award, in so far as it is material to this suit, being as follows:

"We find that after setting aside to Myles O'Reilly the lots heretofore sold to him by H. M. Trueheart, that is Blocks E2, V and E, which we have valued at $1,157.00, there is not enough land by $340.82 to vest in R. E. Montgomery his pro-rata part of these blocks, we therefore, set apart to R. E. Montgomery all the remaining block between the platted lots and blocks of section 15, John A. Scott survey on both sides of the Big Wichita River, as shown by a list hereto attached and marked Exhibit H2 for identification and made a part hereof, the same being of the appraised value of $6,600.00."

"That said Exhibit H2 attached to and made a part of said report, reads as follows:

"[Caption.]

"`Land on river front part of Section 15, John A. Scott Survey lying between the platted lots and Blocks on the North and South sides of the Big Wichita River, as shown by plat recorded in Book E, page 264, Deed Records of Wichita County, Texas, excepting Blocks U, G, F and FS and Block T.'"

It is further alleged that thereafter, to wit, on about February 25, 1913, one of the commissioners, by agreement of all parties, filed his supplementary report, supplementing the original report theretofore made by all three commissioners, which original and supplemental reports were referred to in the final decree entered in the partition proceedings.

Movant further alleges: That on or about February 25, 1913, the report of the commissioners in partition, coming on to be heard, together with the supplemental report, the original report as modified by the supplemental report, was, in all things, approved and confirmed, except that all of block T therein referred to was adjudged to R. E. Huff and W. M. McGregor. That, in the portion of said decree adjudging to R. E. Montgomery the property set apart to him by said commissioners, the court, through a clerical error, inadvertently included in the description of the property awarded to Montgomery said block G which was expressly excepted in the interlocutory judgment, from the lands to be partitioned, and was expressly excepted from the lands awarded and set apart to the said Montgomery by said commissioners in their report. That said block G was not included in the lands specifically awarded to Montgomery.

It is further alleged that the court decreed that Montgomery do have and recover of and from the plaintiff, H. M. Trueheart, and intervener, John Adriance, and Myles O'Reilly, and all other defendants in the suit, the following described land, situated in Wichita county:

"All of that land situated in said County being out of Survey No. 15, John A. Scott, which lies between the platted portions of the lots and blocks of the City of Wichita Falls on the south side and the north side of the Wichita River which is described by metes and bounds as follows."

The motion then proceeds to describe a tract of land of about 20 acres, which both parties to this proceeding admit includes the south half of block G, lying south of the river, and which is the subject of this controversy.

It is further alleged that the court's judgment recites:

"It is further adjudged and decreed that the title of the said H. M. Trueheart, John Adriance and all the other defendants in this suit, be and is hereby divested out of them and vested in the said R. E. Montgomery."

It is further alleged: That, in the award of the lands set apart to defendant Montgomery by said commissioners as aforesaid, the court, through inadvertence and by reason of a clerical error, apparently included by mistake that portion of block G as shown by a plat filed in the case of Foreman v. Trueheart No. 199 on the docket of the district court of Wichita county, which plat is recorded on the minutes of said court in volume 1, pp. 617-619. That said portion of block G was expressly excepted from the lands directed to be partitioned by the district court in its interlocutory judgment, and was excepted also from the lands covered by the awards made by the commissioners, and was not included in the lands set apart and awarded by the commissioners to R. E. Montgomery. That it was not the judgment of said court that any other lands than those set apart and awarded to the said Montgomery should be vested in him by virtue of the order of the court confirming and approving the report of the commissioners appointed as aforesaid. That the recitations in said decree, in so far as they purport to award and vest in the said R. E. Montgomery the title to the land which covered and included that portion of block G lying south of the Wichita river, was inconsistent with said interlocutory order and the report of the commissioners, and was not the judgment of this court as actually rendered, but represent a mistake and clerical error in entering the judgment, which was, in fact, rendered by the court. That, at the time of the entering of said judgment, the legal title to that portion of said block G lying south of the Wichita river was vested in the First National Bank of Wichita Falls, but the equitable title thereto was in W. C. Heath, who was not a party to this suit, and in R. E. Huff, each of whom owned an undivided one-half interest therein. That said land was not in litigation in said suit at the time of entering said judgment, and the court in effect rendered no judgment for the title and possession of said land; but, by reason of said mistake and clerical error above referred to, the title of this defendant has been clouded and the said Mrs. Charlotte Montgomery, as the surviving wife and sole devisee of the said R. E. Montgomery, deceased, is claiming an undivided one-half interest in the land last above described, by virtue of the language contained in said final decree of this court, confirming the report of said commissioners as aforesaid, which language, as above stated, was, by reason of such clerical error and mistake, such that the land described as block G was apparently included among the lands by said decree vested in the said R. E. Montgomery. Notwithstanding the fact that the language in said decree was such that the description of the land vested in the said Montgomery apparently included that portion of said block G lying south of the Wichita river, it was not the judgment of this court that said land should vest in and be awarded to said Montgomery. That said decree should be amended and corrected so as to conform to the judgment in fact rendered by the court at that time ratifying and confirming the report of the commissioners.

The prayer is that the said judgment entered in said above...