Park v. Roberts
| Decision Date | 21 February 1949 |
| Docket Number | No. 5947.,5947. |
| Citation | 219 S.W.2d 598 |
| Parties | PARK v. ROBERTS et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Moore County; Harry H. Schultz, Judge.
Suit in the nature of trespass to try title by W. M. Roberts and wife against Roy W. Park. From a judgment for the plaintiffs, the defendant appeals.
Judgment reversed and cause remanded.
C. B. Bourne, Jr., of Dumas, and King Fike, of Delhart, for appellant.
Eli Willis and H. G. Bennet, both of Dumas, for appellees.
This suit, in the nature of trespass to try title to a town lot and building located in the town of Dumas, was filed by appellee, W. M. Roberts, against appellant, Roy W. Park, on May 5, 1948. Appellant answered by general denial, plea of not guilty and specially alleged that he was occupying the premises under a written lease of date January 9, 1947, and expiring January 15, 1949. Appellee filed a supplemental petition in which he alleged that the lease contract had been violated by appellant; that he had cut a hole in the roof of the building and thereby damaged the same; that he had added a porch to the west side of the building; and that he had undertaken to re-decorate the interior of the building and had destroyed a fine finish that appellee had placed upon the walls a short time before the execution of the written lease. He alleged that these things had been done by appellant without consulting appellee or procuring his consent. On September 10, 1948, appellee filed what he termed a supplemental petition, but which was, in effect, a motion for judgment against appellant upon the ground that, on the 19th of June, 1948, after the pleadings had all been filed and the cause set down for trial on that date, appellant, acting in person and through his attorney, in open court, entered into a compromise agreement for the settlement of the controversy in which he agreed to give appellee possession of the property by August 31, 1948, if appellee would not further disturb him in his possession of the premises until that date. According to his allegations, it was further agreed between them that, if appellant gave up possession of the premises by August 31, 1948, and paid the rental to that date, the case would be dismissed: but, if he failed to do so, judgment may be entered dispossessing him. He alleged further that he had fully carried out his part of the agreement and permitted appellant to remain in possession of the premises to August 31, 1948, but that appellant had wholly failed to give possession thereof and he prayed for a judgment in accordance with the alleged agreement.
Appellant answered the motion for judgment by alleging that the purported agreement was not entered into freely and voluntarily by him, but was the result of duress and coercion; that it was without consideration; that it was not in writing nor signed and filed with the papers in the case; nor was it made in open court and entered of record in the cause, as required by Rule No. 11, Texas Rules of Civil Procedure.
The case was called for trial on September 13, 1948, and the court proceeded to try it upon the allegations of appellee's motion for judgment upon the agreement. The court concluded, after hearing the evidence, that the question presented was one of law and that the appellee ought to recover. It decreed therefore that appellee recover the title and possession of the premises sued for; that a writ of restitution issue; and that the cost be taxed against the appellant.
Appellant presents the case in this court for review and contends the judgment should be reversed because it was not shown that any agreement entered into by the parties was signed by them and filed as a part of the record in the case, nor was such agreement made in open court and entered of record as required by Rule No. 11, T.R.C.P.
The rule provides that no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record. According to the allegations of appellee, the agreement entered into between him and the appellant was in effect an agreement for judgment. It provided that if appellant complied with his part of it, the suit would be dismissed; but, if he did not give up possession according to his agreement, judgment would be entered dispossessing him.
No statement of facts accompanies the record and we are...
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