Nunez v. McElroy

• Decision Date: 24 February 1916
• Docket Number: (No. 408.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 531
• Parties: NUNEZ v. McELROY.
• Court: Texas Court of Appeals

184 S.W. 531

NUNEZ v. McELROY.

(No. 408.)^*

Court of Civil Appeals of Texas. El Paso.

February 24, 1916.

Rehearing Denied March 23, 1916.

Appeal from District Court, El Paso County; M. Nagle, Judge.

On motion to vacate judgment of affirmance. Denied.

For former opinion, see 174 S. W. 829.

C. L. Vowell, Beall & Kemp, and J. E. Quaid, all of El Paso, for appellant. Davis & Goggin, Paul D. Thomas, and Burges & Burges, all of El Paso, for appellee.

HIGGINS, J.

At a preceding term of this court, a final disposition of this appeal was made and judgment of affirmance entered. At this term, appellant filed a motion setting up that the judgment of the lower court was not final; therefore this court never acquired jurisdiction, and its order of affirmance was a nullity and should now be vacated and the appeal dismissed. If the judgment of the court below is subject to the objection urged against it, this court never acquired jurisdiction of the case. Its order of affirmance would be a nullity and it should now be vacated and the appeal dismissed. The fact that this motion is filed at a subsequent term is not an objection to such action. Chambers v. Hodges, 3 Tex. 517; Burke v. Mathews, 37 Tex. 73; Burr v. Lewis, 6 Tex. 76; Munson v. Newson, 9 Tex. 109; Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312; Milam Co. v. Robertson, 47 Tex. 222.

Appellant's motion will therefore be considered upon its merits.

It is objected to the judgment of the court below that it lacks finality, because it fails to dispose of all the parties to, issues, and subject-matter of, the litigation.

The suit was filed by McElroy against Nunez et al. to recover title to and possession of a number of surveys of land bordering on the Rio Grande river. On July 31, 1913, plaintiff filed an amended petition against the same defendants and Ignacio Rodriguez. On September 2, 1913, defendants filed a plea of not guilty. On January 7, 1914, defendants filed another answer, which reads:

"Now come defendants and deny each and every allegation in plaintiff's petition and demand strict proof of same.

"Defendants say they are not guilty of the wrongs and injuries complained of in plaintiff's petition.

"Defendants say that they have been in peaceable and adverse possession of land described in plaintiff's petition under title and color of title for more than three years next preceding June 1, 1913, and therefore say plaintiff's cause of action is barred by statute of limitation, and of this prays judgment of the court.

"Defendants further say that they have had peaceable and adverse possession of said real estate described in plaintiff's petition, cultivating, using and enjoying the same for ten years next preceding June 1, 1913, and therefore plaintiff's cause of action is barred by the statute of limitation, and of this they pray judgment of the court.

"Defendants further say that they have been in peaceable and adverse possession of said real estate, cultivating, using, and enjoying the same and paying taxes thereon and claiming under a deed and deeds duly registered for more than five years next preceding June 1, 1913, and therefore plaintiff's cause of action is barred by statute of limitation, and of this pray judgment of the court.

"Wherefore defendants pray for judgment over and against the plaintiff herein for all land between the old river as it ran at the time the respective surveys of respective numbers set up in plaintiff's petition and present Rio Grande river; same is not accretion to said numbers and because same is property in fee simple of defendants."

On January 8, 1914, plaintiff again amended, in such amendment stating that he dismissed as to all defendants except Nunez. This petition complained only of Nunez, and prayed judgment against him for the title and possession of the land therein described. The land described was five acres out of one of the surveys named in the preceding petitions. On the same date the court entered an order of dismissal as follows:

"Be it remembered that on this the 8th day of January, 1914, came the parties by their attorneys, and the plaintiff says that he will not further prosecute his suit against the defendants Melquervas Perea, Catrino Rivera, Felix Castillos, Patricio Rivera, Joaquin Ruiz, Alberto Chavez, Preciliano Apodaca, Bonifacio Sapulga, Victoria Espinosa, Jesus Rivera, Gregorio Rivera, Polito Sapulga, Julian Sanchez, Mauricio Apodaca, Frank Alderete, Robert Parson, and R. J. Owen, and dismisses, without prejudice, as to all of the defendants except the defendant Jesus Nunez, but will prosecute his suit as to defendant Jesus Nunez. It is therefore considered by the court that this suit be dismissed as to the said Melquervas Perea, Catrino Rivera, Felix Castillos, Patricio Riveria, Joaquin Ruiz, Alberto Chavez, Preciliano Apodaca, Bonifacio Sapulga, Victorio Espinosa, Jesus Rivera, Gregorio Rivera, Polito Sapulga, Julian Sanchez, Mauricio Apodaca, Frank Alderete, Robert Parson, and R. J. Owen, but as to the defendant, Jesus Nunez, be proceeded with and that the defendants, Melquervas Perea, Catrino Rivera, Felix Castillos, Patricio Rivera, Joaquin Ruiz, Alberto Chavez, Preciliano Apodaca, Bonifacio Sapulga, Victorio Espinosa, Jesus Rivera, Gregorio Rivera. Polito Sapulga, Julian Sanchez, Mauricio Apodaca, Frank Alderete, Robert Parson, and R. J. Owen, go hence without day, without prejudice to any cause of action which plaintiff may have against them or any of them, and that they and each of them have and recover of the plaintiff, John T. McElroy, their costs in this behalf expended, and that they have their executions, and that this cause stand for trial with the said John T. McElroy as plaintiff and Jesus Nunez as defendant."

In this order, it will be observed that Ignacio Rodriguez is not specifically named.

On January 12, 1914, Nunez filed what he designates his trial amendment in answer to the trial amendment of plaintiff, and in this amendment he pleaded not guilty; also, the five and ten years' statute of limitation which he pleaded in bar of the suit. This answer concluded with this prayer:

"Defendant says, by reason of the aforesaid statute of limitation, the facts pleaded in connection with defendant's prayer invoking the same, that he is the owner in fee simple of the property described in plaintiff's petition, is the owner of the title thereto, the same is by law vested in him, and he prays on final hearing that he have judgment over against the plaintiff for the lands described in plaintiff's petition and for the title thereto, and that he have judgment quieting his title forever as against any claim of this plaintiff."

To this last amendment plaintiff filed a supplemental petition containing matter in no wise pertinent to the questions here considered. It concluded with prayer for recovery of the premises described in his last amended original petition and that Nunez take nothing by his cross-action.

Upon trial of the cause, the court entered judgment in favor of McElroy against Nunez for the title and possession of the five acres of land described in McElroy's...