Parr v. Chittim

• Decision Date: 22 June 1921
• Docket Number: (No. 247-3446.)
• Citation: 231 S.W. 1079
• Parties: PARR et al. v. CHITTIM.
• Court: Texas Supreme Court

231 S.W. 1079

PARR et al. v. CHITTIM.

(No. 247-3446.)

Commission of Appeals of Texas, Section B.

June 22, 1921.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Annie E. Chittim against G. A. Parr and others. To review a judgment for defendants, plaintiff brought error to the Court of Civil Appeals, which reversed and rendered judgment dismissing the cause for want of prosecution (216 S. W. 638), and defendants bring error. Judgment of the Court of Civil Appeals affirmed.

Hicks, Hicks, Dickson & Bobbitt, of San Antonio, James B. Wells, of Brownsville, and C. C. Forry, of Alice, for plaintiffs in error.

Dougherty & Dougherty, of Beeville, and G. C. Robinson, of El Paso, for defendant in error.

POWELL, J.

On December 8, 1905, in the district court of Bexar county, Tex., the estate of J. M. Chittim recovered judgment against A. Parr for $60,115.30, with interest from the date thereof at the rate of 6 per cent. per annum and all costs of court. Said judgment was kept alive by issuance of various executions from time to time, which were returned "nulla bona." An abstract of said judgment was duly recorded in the office of the county clerk of Duval county, Tex., on December 18, 1905, and March 3, 1916. The filing, recording, and indexing of said judgment became a lien on such real estate as A. Parr then owned or might thereafter acquire in Duval county, Tex. On August 1, 1916, G. A. Parr acquired by deed some 12,728 acres of land situated in Duval county, Tex.

On March 23, 1917, Mrs. Annie E. Chittim, representing the estate of her deceased husband, J. M. Chittim, filed suit in the district court of Duval county, Tex., alleging that A. Parr had furnished to G. A. Parr the money for the purchase of said 12,728 acres of land; that, while the deed was taken in the name of G. A. Parr, it was really for the benefit of A. Parr; that the latter and G. A. Parr conspired together to take this deed as they did, in the name of G. A. Parr, in order that the property might be placed beyond the reach of the creditors of A. Parr, and especially the Chittim obligation. The plaintiff asked for a foreclosure of her judgment lien on said 12,728 acres of land.

Each of said defendants denied all the allegations of plaintiff's petition, generally and specially. G. A. Parr alleged he bought the property in good faith, as his own and with his own money. Neither defendant filed any cross-action or prayer for affirmative relief.

On May 22, 1917, the cause was continued for service. On December 3, 1917, the case was set down by agreement for December 13, 1917, when it was finally continued for that term of court by consent without prejudice. On May 21, 1918, in term time, the case was placed on the jury docket and set by agreement for May 30, 1918.

We shall refer to the parties hereafter as they were known in the trial court, as plaintiff and defendants. On May 30, 1918, the defendants, accompanied by their counsel and witnesses, appeared in court. But, the case being regularly called for trial on the very day for which it had been set by agreement, neither the plaintiff nor her counsel appeared, but wholly made default, nor did they send any word of explanation to the court of their failure to appear. The case being called, the defendants announced ready for trial. A jury was had, and when the evidence was all in the trial court, upon request, instructed a verdict for the defendants, which was accordingly returned. Judgment was so entered.

In due course thereafter plaintiff sued out a writ of error to the Court of Civil Appeals at San Antonio, alleging that under the circumstances of this case the only judgment the trial court was authorized to enter was one dismissing the case for want of prosecution. The Court...