Neill v. Tarin

• Decision Date: 01 January 1852
• Citation: 9 Tex. 256
• Parties: NEILL v. TARIN AND OTHERS.
• Court: Texas Supreme Court

9 Tex. 256

NEILL

v.TARIN AND OTHERS.

Supreme Court of Texas.

1852.

Where the petition refers to and sufficiently designates a former judgment between the same parties for the purpose of alleging circumstances to destroy its effect, it is not necessary for the defendant to plead such former judgment, formally, in his answer.

There was an agreement in these words: “It is agreed by the parties that the jury be with-drawn and the whole matter submitted to the determination of the court for the perpetuation of the injunction, and that the defendant Neill shall remove immediately from the possession of the property:” Held, That the agreement contemplated a final determination of the matters in controversy by the judgment of the court.

It has always been competent for parties to waive a jury and submit the case to the judge.

Appeal from Bexar.

I. A. & G. W. Paschal, for appellant.

Hewitt and Newton, for appellees.

LIPSCOMB, J.

In this case we cannot perceive that there is anything substantial in the appellant's objection to the manner in which the judgment and decree of a former suit between the same parties was presented to the court. The appellant had referred to and sufficiently designated the former proceeding between the same parties and it was for the same subject-matter, but averred that the decree was under an agreement of the parties, and that it was spread upon the record; that the injunction was to restrain the appellant for ten years; that this judgment was rendered at the April Term, 1839, of the District Court of Bexar county. The defendants set this judgment up as a bar to the plaintiff's action. It is true that it was not as formally pleaded as it would or should have been if the plaintiff had not referred to it in his petition. We believe, under such circumstances, it was well pleaded, and that the record of the former suit was properly admitted in evidence under it.

The plaintiff alleges in his petition that the agreement of the parties was spread upon the record, and that any decree not following the agreement was obtained by fraud and bribery. We believe that the decree does substantially conform to the agreement upon the record; and there was no evidence offered to prove that it was procured by fraud and bribery. The following is the only agreement spread upon the record: “It is agreed by the parties that the jury be withdrawn and the whole matter submitted to the determination of the court for the perpetuation of the injunction, and that the defendant Neill shall remove immediately from the possession of the property.”

The decree then proceeds: “Whereupon the case came on to be heard on the petition, general demurrer, joinder in demurrer, and answer to the petition, and it being fully proved by many witnesses, among the oldest citizens in the country, that the plaintiffs and those through whom they claim, have been in the peaceable and uninterrupted possession of the land in contest and described in the plaintiffs' petition upwards of forty years, by virtue of a grant from the old Spanish government, and which has been continued down by various governmental orders, concessions, and surveys to the present time, and which is admitted by the terms of the demurrer which was overruled, as will appear by reference to the record and the exhibits in this case and the testimony adduced, and therefore, the court being fully advised of and concerning the premises, from the examination thereof and the law arising thereupon, from the argument of counsel on both sides, do order, adjudge, and decree that the plaintiffs have full and absolute rights to their property in contest, to enjoy the absolute and uninterrupted and peaceable enjoyment of the same, without any...