Pena v. Bourland
| Decision Date | 24 June 1947 |
| Docket Number | Civ. A. No. 312. |
| Citation | 72 F. Supp. 290 |
| Parties | PENA v. BOURLAND et al. |
| Court | U.S. District Court — Southern District of Texas |
E. T. Yates, of Brownsville, Tex., for plaintiff.
J. T. Canales, of Brownsville, Tex., and John A. Pope, Jr. of Rio Grande City, Tex., for defendants.
Manuel Pena, the plaintiff herein, a citizen of the Republic of Mexico, but who resides, and has resided for many years in the City of Mission, Hidalgo County, Texas, brings this suit against B. C. Bourland, Frank Zarsky, and Angela Saenz de Lopez, to recover title to some 200 acres of land, more or less, out of Porcion No. 82, in Starr County, Texas. Plaintiff bases his claim to title by limitation under the ten-year statute, Vernon's Ann.Civ.St.Tex. art. 5510, and a deed from Manuel Lopez Rostro, Marcos Lopez Rostro, Francisco Lopez Rostro, Adan Lopez Rostro, Tomas Lopez Rostro, and Concepcion Lopez, of date September 7, 1944.
Defendants duly answered and set up as their defense that the plaintiff had not stated a cause of action against them because they claim they would be tenants in common and there is no allegation of repudiation of common title and notice to defendants of such repudiation. Defendants also strongly urge a plea of lack of jurisdiction and a plea of res adjudicata, both pleas being founded upon a judgment of the District Court of Starr County, Texas, which is fully described in the agreed statement of facts hereinafter set forth. Defendants also urge in the nature of a bar, the fact that the five Rostro brothers above named, employed counsel, to-wit: E. A. McDaniel, to file, and he did file a motion for a new trial in the Starr County case, and that such motion having been overruled, same was not appealed from, but became final. No allegation is urged by the plaintiff that such appeal not being perfected was because of any fraud, or accident, or fault of the defendants herein.
Findings of Fact.
The statement of facts agreed to by plaintiff and defendants is as follows:
"Manuel Pena, | In the District
Plaintiff | Court of the United
v. | States in and for
B. C. Bourland, Frank > the Southern District
Zarsky, and Angela | of Texas
Saenz de Lopez, Defendants. | Brownsville Division
| Civil Action 312
Now comes the Plaintiff and the Defendants, through their respective counsel and submit to the Court the following agreed statement of facts, to-wit:
I. The land in controversy in this suit comprises, more or less, 200 acres, and is fully described in the Third Paragraph of Plaintiff's First Amended Original Petition. All of said land being part of what is known as Porcion 82 of the Ancient Jurisdiction of Carmargo, now in Starr County, Texas, originally granted to Nicolas Vela by the Spanish Government in America.
II. The Plaintiff claims title to said land under the 10 years Statute of Limitation, as fully set out in the Fourth and Fifth Paragraph of Plaintiff's Petition.
III. On the 16th day of December A. D. 1940, W. S. Parks, a resident of Jim Hogg County, Texas, and Martimiano Cantu, a resident of Hidalgo County, Texas, filed in the District Court of Starr County, Texas, a suit, numbered and styled as follows: `No. 2082, W. S. Parks et al. v. Howard L. Bass et al.,' in trespass to try title, involving all of said above described Porcion 82, against Howard L. Bass and mentioned other defendants, among whom Manuel Lopez, Marcos Lopez, Francisco Lopez, Adan Lopez, Tomas Lopez, B. C. Bourland, Frank Zarsky and Angela Saenz de Lopez, were defendants, in which plaintiff prayed for
IV. On the 17th day of December A. D. 1940, the District Clerk of Starr County issued citation under the above Petition to Defendants alleged in said Petition to be residents of Starr County, among whom were Manuel Lopez (also known as Manuel Lopez Rostro); Marcos Lopez (also known as Marcos Lopez Rostro); Adan Lopez and Tomas Lopez.
V. The Sheriff's return on the above-mentioned citation shows that on the 23d day of December, 1940, at 9 o'clock A. M. the above citation came to his hands and that Manuel Lopez Rostro was personally served at the place called Arroyo on December 27, 1940, at 2:45 P. M., and Marcos Lopez Rostro was served at the place called Arroyo on the same day and at the same time. And the return further shows that the citation was not executed as to the Defendants Adan Lopez and Tomas Lopez for the reason that they are not to be found in Starr County. This citation with its return was filed on the 17th day of March A. D. 1941.
VI. As to the Defendant Francisco Lopez, who was alleged in the petition to be a resident of Jim Hogg County, the citation was issued by the District Court of Starr County, Texas, on the 16th day of December, 1940 and the Sheriff's return shows that the citation came to his hand on the 19th day of December, 1940 and the Defendant Francisco Lopez was personally served at San Carlos Ranch on December 19, 1940 at 10:30 A.M.
VII. After the citation and the return thereof in Starr County, mentioned in Paragraph V was filed and on the 7th day of August, 1942, the Plaintiffs filed their Second Amended Original Petition in which they alleged among other things the residence of the Defendants, Adan Lopez and Tomas Lopez, were unknown and prayed for citation by publication to issue. This Second Amended Petition contains affidavit for citation by publication which was sworn to by one of the attorneys for the Plaintiffs on the 7th day of August, 1942.
VIII. Thereafter the Clerk of the District Court of Starr County, on the 8th day of August, 1942 issued citation by publication and the return of the Sheriff shows that the same was published once each week for four consecutive weeks previous to the return date thereof. Said citation was published in The Rio Grande Herald, a newspaper of general circulation which is published in Rio Grande City, Texas. The citation is in due form and the affidavit of Lino Perez, the publisher, is attached thereto, and the names of the Defendants Adan Lopez and Tomas Lopez were among those cited by publication.
IX. On the 18th day of March A. D. 1941, the District Judge of Starr County, Texas, appointed by order entered, the Hon. Eugene N. Catlett to represent Defendants cited by publication in this cause and he filed an Answer for the Defendant Adan Lopez, among other defendants.
X. On the 18th day of March A. D. 1941, the District Judge of Starr County, Texas, by order duly entered of record, appointed the Hon. Vernon B. Hill to represent the defendants minors in this cause and filed an answer for the defendant Tomas Lopez, who was alleged to be a minor.
XI. On the 22d day of June, 1943, the District Judge of Starr County, Texas, by order duly entered, appointed the Hon. Charles E. Thompson to represent the defendants in the cause who were named in an Affidavit filed in this cause to be in the Military Service, but have no attorney now representing them in this cause, and he filed an answer for such defendants without naming any.
XII. All of the said answers by attorneys ad litem, guardian ad litem and attorney representing defendants in the military service consisted of a plea of not guilty.
XIII. The defendant B. C. Bourland, and the defendant Frank Zarsky, and the defendant Angela Saenz de Lopez, each filed a plea of not guilty in said suit.
XIV. On the 29th day of September A. D. 1943, the District Court of Starr County in the above styled and numbered cause, entered a judgment which recites that Manuel Lopez, Marcos Lopez and Francisco Lopez were duly cited but they failed to answer and made default.
XV. The same judgment further recites that the defendant Adan Lopez appeared by his attorney Eugene N. Catlett and the defendant Tomas Lopez appeared by his attorney Vernon B. Hill, who answered for them.
XVI. The same judgment further recites: `And the Court after hearing and considering the proceedings, process and the evidence, was of the opinion that judgment and decree should be entered as herein done.' The said judgment further recites that the parties listed in Paragraph Fourth, `do have and recover of and from all other parties to this suit, plaintiffs, defendants, and intervenors, the title to and possession of the whole of Porcion 82 as herein described, and they and each of them in the respective proportions set out in Paragraph Fourth hereof are hereby quieted in their respective titles and interests as therein set out against the claims of each and every party to this suit.'
XVII. Paragraph Fourth of said judgment mentions the defendants B. C. Bourland, who was allotted 143.333; Frank Zarsky, who was allotted 252.592; Angela Saenz de Lopez, who was allotted 11.122. The Plaintiff W. S....
To continue reading
Request your trial
-
Remley v. Kleypas, Civ. A. No. B-84-93-CA.
...for rehearing, an appeal, some form of writ of error, a bill of review, or an injunction to restrain its execution. Pena v. Bourland, 72 F.Supp. 290 (S.D.Tex.1947). An attack, to be direct, must be brought in a court where such judgment was rendered. Pena, 72 F.Supp. at 294. See, Switzer v.......
-
Moore v. Moore, 4126
...336. The foregoing case has been cited with approval on many occasions and we may consider the rule well settled. Accord: Pena v. Bourland, D.C., 72 F.Supp. 290, 294; and Commonwealth ex rel. Howard v. Howard, 138 Pa.Super. 505, 10 A.2d 779. This is not to say that on direct attack in a pro......
-
In re Hilal, Case No: 05-36909 (Bankr. S.D. Tex. 9/24/2007)
...259 F.Supp. 9, 11 (D.C. Tex. 1966) (citing Litton v. Waters, 161 S.W.2d 1095 (Tex. Civ. App. 1942), err. ref.; Pena v. Bourland, 72 F.Supp. 290 (D.C. Tex. 1947)). See also, Nolte v. State, 854 S.W.2d 304 n.5 (Tex. App. — Austin 1993) ("A void judgment is one that may be collaterally attacke......
-
Little v. Celebrezze, Civ. A. No. 4-493.
...face of the record are classified as void judgments. Litton v. Waters, Tex.Civ.App., 161 S.W.2d 1095 (1942), err. ref.; Pena v. Bourland, D.Ct.Tex., 72 F.Supp. 290 (1947). There is no jurisdictional defect appearing on the face of the divorce decree entered by the 96th District Court in 193......