Pearson v. Lloyd

• Decision Date: 12 June 1919
• Docket Number: (No. 351.)
• Citation: 214 S.W. 759
• Parties: PEARSON et al. v. LLOYD et al.
• Court: Texas Court of Appeals

Page 759

214 S.W. 759

PEARSON et al. v. LLOYD et al.

(No. 351.)

Court of Civil Appeals of Texas. Beaumont.

June 12, 1919.

Rehearing Denied July 2, 1919.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Suit by London Pearson and others against W. H. Lloyd, as temporary administrator of George Gostick, deceased, and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Stanley Thompson, of Houston, for appellants.

Edw. H. Bailey, Jno. C. Williams, Jno. M. Cobb, H. Masterson, and H. N. Atkinson, all of Houston, for appellees.

HIGHTOWER, C. J.

This suit was commenced by London and Addie Pearson, husband and wife, and Oscar Grubbs, as plaintiffs below, against W. H. Lloyd, as temporary administrator of George Gostick, deceased, and other defendants named in the petition of the plaintiff, the same being a direct proceeding by said plaintiffs to have canceled and set aside a judgment of the district court of Harris county, Tex., rendered in a cause styled W. H. Lloyd, Administrator, v. H. Yoakum et al., No. 51755 on the docket of said court, in which said cause the defendants in this case, who are appellees here, were defendants and interveners. Before the trial of this case Oscar Grubbs was dismissed as one of the plaintiffs, and the cause proceeded to trial with appellants, London and Addie Pearson, as the sole plaintiffs.

Appellants also sought in this case to recover from appellees the title and possession of approximately two acres of land described in their petition, title to which they claimed under the statutes of limitation of five and ten years. The land sought to be recovered by appellants in this suit was the subject-matter involved in said cause No. 51755, judgment in which was sought to be canceled and set aside, as above stated, which judgment was adverse to appellants here, and, if valid and permitted to stand, divested all right, title, and interest out of them, and vested the same in the interveners and certain defendants, who filed cross-actions in that suit.

We shall not attempt to state the grounds of attack made by appellants upon the judgment in said cause No. 51755, but have concluded that the same was clearly vulnerable to some of the attacks made upon it, and subject to be set aside and canceled, as prayed by appellants in their direct proceeding for that purpose. This disposes of appellants' first and second assignments of error, complaining of the action of the trial court in refusing to cancel and set aside the judgment in said cause No. 51755, Lloyd, Administrator, v. Yoakum et al., and, if the action of the court in that regard were the only matter for determination here, it would follow that the judgment of the trial court would have to be reversed and the cause remanded.

The defendants in this cause, however, after answering by general demurrer and by general denial of any right in appellants to have canceled and set aside the judgment in said cause No. 51755, also alleged that on the 20th day of May, 1908, one Kate Weaser was appointed temporary administratrix of the estate of George Gostick, deceased, and that she was authorized in the order of appointment to bring suits against trespassers upon the estate of George Gostick, and that said Kate Weaser, as such temporary administratrix, brought suit in the district court of Harris county, Tex., against appellants for a tract of land, of which the two acres here in controversy constituted a part, and that afterwards, on the 7th day of July, 1908, judgment was rendered in said cause against appellants for the land here involved, and appellees set up such judgment in bar of appellants' right to recover herein. The judgment so interposed by appellees was rendered in a cause styled Kate Weaser, temporary administratrix of the estate of George Gostick, deceased, against London Pearson et al., and was numbered 45718 on the docket of the district court of Harris county. This judgment, when hereinafter mentioned, will be referred to as the Kate Weaser judgment.

There were other pleadings on the part of the appellees in this case unnecessary here to mention.

After filing of their answer by appellees setting up the Kate Weaser judgment in bar of appellants' suit, as above stated, appellants then filed in this case a supplemental petition, in which supplemental petition appellants for the first time attacked in any manner or upon any ground the Kate Weaser judgment. It is unnecessary to here state the several grounds of attack made by appellant on the Kate Weaser judgment.

The case was tried with a jury, and after appellants had introduced their evidence relevant to their attack upon the judgment in cause No. 51755, Lloyd, Administrator, v. London Pearson et al., and also their evidence relative to their claim of title by limitation, appellees thereupon were permitted to introduce, over appellants' objection, the Kate Weaser judgment, after which the trial court peremptorily instructed a verdict against appellants and in favor of appellees for the two acres here in controversy.

Appellants' third, fourth, fifth, V½, and seventh assignments of error are grouped and submitted together, followed by many propositions.

By the third assignment it is claimed generally that the court committed error in admitting in evidence the Kate Weaser judgment over appellants' objection.

By the fourth assignment it is complained that the court erred in not permitting appellants to introduce in evidence the petition, citation, and return thereon in the Kate Weaser case, and in thereby refusing to permit appellants to show that the Kate Weaser judgment was founded on said petition and citation, and in refusing to permit appellants to prove by the clerk of the court that no other petition, citation, or return was filed in said cause, appellants claiming that it appeared from said petition, citation, and return that the court had no jurisdiction in that cause to render any judgment.

By the fifth assignment, it is claimed, substantially, that the trial court erred in holding that the Kate Weaser judgment was a valid judgment and constituted a bar to appellants' right to recover in this suit, and especially that the court erred in holding that said judgment barred appellants' right to recover a one-half interest in the land here involved, appellants claiming that it appeared from the evidence that at the time said judgment was rendered, as well as at the time said suit was commenced, a one-half interest in the land here involved was in one James Grubbs, and that he was not a party to said suit.

By assignment V½ it is complained, substantially, that the trial court erred in refusing to allow appellants to show that at the time the Kate Weaser judgment was rendered, and at the time that suit was commenced, Kate Weaser had not in fact been appointed and was not in fact temporary administratrix of the estate of George Gostick, and also that the court erred in refusing to allow appellants to show that the judgment in that cause was obtained by fraud.

By the seventh assignment it is complained, in effect, that the court erred in permitting a witness, R. M. Little, to testify, over objection of appellants, in aid of the description of the land involved in the Kate Weaser judgment, the ground of objection being that it was an attempt to vary and contradict the judgment on the part of appellees.

By the first proposition under these grouped assignments it is contended, in effect, that the Kate Weaser judgment was void for lack of sufficient description.

The description of the land, as shown by the judgment, is as follows:

"All that portion of the John Austin two-league grant in Harris county, Texas, out of the Gostick home tract, being a part of the Ward tract in said county, and bounded and described as follows, to wit:

"Beginning at a point 600 feet west of the intersection of the Montgomery road with 23d street as extended from Houston Heights.

"Thence north 300 feet; thence west 500 feet to the west line of the Gostick homestead; thence south with said west line 300 feet to corner in the north line of 20th street; thence east 500 feet to the place of beginning."

The second proposition is, in effect, that if the description in the judgment is sufficient to identify any land, that, nevertheless, such land is not that here sued for by appellants, and hence the Kate Weaser judgment would be no bar against appellants; and by the third proposition it is contended, in effect, that the Kate Weaser judgment having been pleaded by appellees as res adjudicata and also as outstanding title, they were bound by the very description contained in the judgment itself and could not properly be permitted to show that there was any mistake in the description as contained in the judgment, since there was no pleading by appellees of any such mistake, and that, if there had been such pleading, it would have been too late to have corrected the description, since more than four years had elapsed from the date of the judgment.

It is shown by the record in this case, without dispute, that Twenty-Third street nowhere touched the Gostick land; and it is apparent from the judgment, by reversing the calls for the description, as there contained that the beginning call for Twenty-Third street was a mistake, and that it was clearly intended that Twentieth street was meant for that call; and the intentions of the parties thus being apparent, there was no error on the part of the court in overruling appellants' objection on the ground of insufficiency of description, nor was there error in permitting the evidence showing that Twenty-Third street nowhere touched the Gostick land. Carlisle v. King, 103 Tex. 620, 133 S. W. 241. Therefore the three propositions just mentioned and the assignments to which they relate are overruled.

By the fourth proposition it is contended that the Kate Weaser judgment was a judgment for the possession only of the land...