Plummer v. Power

• Decision Date: 31 January 1867
• Citation: 29 Tex. 6
• Parties: JOSEPH E. PLUMMER v. TOMASA POWER ET AL.
• Court: Texas Supreme Court

29 Tex. 6

JOSEPH E. PLUMMER

v.TOMASA POWER ET AL.

Supreme Court of Texas.

January, 1867.

It is conclusively settled, by repeated decisions of this court, that a new trial may be granted by the district court in a case properly invoking its equitable powers, after the adjournment of the term of the court at which the judgment was rendered. Pas. Dig. art. 1470, note 566; 17 Tex. 107;20 Tex. 578;21 Tex. 180, 740.

But it is equally clear that such relief will not be granted unless the party seeking it can show that he was prevented from making a valid defense to the action, in which the judgment has been rendered against him by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on his part. Pas. Dig. art. 1470, note 566.

He must be able to impeach the justice and equity of the verdict of which he complains, and to show also that there is good grounds to suppose that a different result will be attained by a new trial. 21 Tex. 740.

It has been repeatedly decided in this court, that the eleven-league grants to Power and Hewitson, within their colony, on Aransas bay, being within the littoral leagues, and having been granted without the consent of the president of Mexico, are invalid and vest no title. Pas. Dig. art. 546, notes 150, 348.

But now it is insisted, that this void grant may be used to prove the extent of the boundaries within which the plaintiffs claim, and by the length of possession to raise the presumption of a grant to the extent of these boundaries, or else to avail themselves of such possession under the statute of limitation. But it is not shown that the title passed from the government, or that the defendant had a title to the land, until a few weeks before the commencement of his original suit. Therefore no defense could have been interposed under the statute of limitation. Pas. Dig. arts. 4622, 4624, notes 1031, 1033.

As there was no proof to show that the plaintiff in the ejectment suit acquired his title more than ten years before commencing his suit, the court thought it unnecessary to decide the effect of the 17th section of the statute of limitation of 1841, or to say whether the 39th section of the act of 1836 is still in force. Pas. Dig. arts. 4602, 4624, notes 1015, 1033.

And although the contrary doctrine was intimated in some of the earlier decisions of the court, it is now conclusively established that the instruction given the jury in the district court, that the plaintiffs were entitled to a verdict if they had shown “ten years' peaceable and exclusive adverse possession presumed,” prior to the commencement of the original suit in which judgment had been taken against them, cannot be sustained upon the doctrine of presumed grants. Pas. Dig. art. 4624, note 1015.

The cases of Watkins v. Taylor, 26 Tex. 688;Walker v. Hanks, 27 Tex. 535; and Biencourt v. Parker, 27 Tex. 558, which qualify the doctrine about the presumption of grants, referred to and approved. Pas. Dig. art. 4624, note 1033; 26 Tex. 688;27 Tex. 535, 558.

APPEAL from Calhoun. The case was tried before Hon. FIELDING JONES, one of the district judges.

Tomasa Power, James Power, Henry D. Norton, Walter Lambert, Moses Simpson, and Patrick Shelby presented their petition to Hon. Fielding Jones, judge of the tenth judicial district of the state, against Joseph E. Plummer, Jr., in which, in substance, it is alleged, that the said Joseph E. Plummer, Jr., commenced his action by petition against the now petitioners, Tomasa Power, James Power, Henry D. Norton, Walter Lambert, Moses Simpson, and Patrick Shelby, in the district court for the county of Refugio, to try title to a tract of land supposed to embrace the land held by them, which had been granted to James Power and James Hewitson; that after the commencement of the action, at the succeeding term of the said court, the venue was changed to Calhoun county, and the record filed in the district court for the said county of Calhoun; that, in absence of the counsel of petitioner, the plaintiff, by his attorney, brought on said action for trial, and obtained verdict and judgment. The petitioners, therefore, upon the facts and circumstances stated in the petition, prayed for a new trial. The judge granted an injunction to the judgment, and the petition was filed in the said district court for Calhoun county. At the December term of said court Plummer appeared and answered, and a trial was had, and verdict for petitioners, and judgment rendered, that the judgment rendered in favor of said Plummer be set aside, and a new trial granted. From this judgment said Plummer gave notice of appeal, and the appeal having been perfected, the record was filed in the supreme court at Galveston. At the first term of that court the appellees moved to dismiss the appeal.

In the answer of Plummer, he denied and traversed all the grounds alleged for a new trial. He specially denied the validity of the title under which the plaintiff claimed. He insisted that it was void, and that the plaintiffs were not and could not be protected by limitation, and, finally, that they had no valid defense to the action. He insisted that his judgment was just and lawful and fair, for reasons given in the answer. The defendant moved to dissolve the injunction, and having sworn off all the equity in the bill, the injunction was dissolved. The issues made by the pleadings were submitted to a jury. The plaintiffs proved their title, as they would upon a trial in ejectment; and also proved the length of their possession or residence on the eleven-league grants of Power and Hewitson; and the plaintiffs also proved the circumstances which excused the attendance on the court by the plaintiffs' attorney. The court charged the jury upon the titles and upon these circumstances. But the verdict of the jury was confined to the grounds of new trial merely. The verdict was in favor of the plaintiffs, and the order was for a new trial. But, in the opinion of the court, the merits of the plaintiff's case seem to have been considered; that is, it was determined that he did not show such facts as would have been a good defense in the former suit. The appellees moved to dismiss the appeal:

1. Because there was no final judgment rendered in the case on which a new trial had been granted.

2. The granting of a new trial is a matter of discretion only, and no appeal or writ of error will lie thereto.

Robert Hughes, for the motion. I. It is admitted to be the rule, that when an application is made, after the adjournment of a term at which judgment was rendered, by petition, for a new trial, it must be shown, 1st. That there is such a case as, if applied for in time, would entitle the party to a new trial; and, 2d, a good reason must be stated why the application in the ordinary manner was not made in due season. Goss v. McClaren, 17 Tex. 107;Spencer v. Kinnard, 12 Tex. 187.

1. The application was made by petition, after the close of the term at which the judgment was rendered, and it is set forth in the petition that the plaintiffs had an indisputable title to the land in question by the operation of the 14th section of the act of limitation of 1847, Hart. Dig. art. 2390, and by the presumption of a title by reason of lapse of time, accompanied with possession.

2. The trial, by virtue of which a verdict and judgment were rendered against the petitioner, was had during the absence of their counsel, who was the counsel, agent, and attorney, looked to and depended upon to attend to the case, and who was absent on necessary business in Washington, in the District of Columbia, up to the 10th day of May, 1858, from the latter part of November, 1857, and the counsel was apprised when he left home that the term of the court in Calhoun county, by law, was to be held in February thereafter; and when he ascertained that he could not attend that term, he made the necessary arrangement for the contingency. But he did not know of the change of the term from February to May until his arrival in Galveston, on the 10th day of May, 1858.

3. That when said counsel arrived at Galveston it was not then in his power to proceed by steamer to Powderhorn, where the court was then in session; but the record shows that this was unnecessary, for the judgment was rendered on the 8th day of May, 1858, and the day on which the counsel arrived from New Orleans on the steamer was the last day at which a motion for a new trial could be entered, and he could not have arrived there until the next day. The plaintiff in the petition for a new trial had an indisputable title, for the reason given. The possession was proved by the witnesses, John Hyres and John Clark, shortly after the issuance of the grant, in 1824, to Power and Hewitson, and was continued by James Power down to his death, in 1852 or 1853, and by his widow and children after his death, to 1st of September, 1856, when this suit was commenced. Besides, the facts are proved by the rule of law, which establishes the admission of all facts stated by the plaintiff, and not denied by the answer.

The appellants seek to avoid the effect of proof, by maintaining that his title did not accrue by patent from government until May, 1856, and consequently, having no cause of action or right of entry, there could be no bar by reason of adverse possession.

To this we answer, that the plaintiff is stating a fact, the effect of which is to avoid a bar by virtue of nearly twenty years' adverse possession, and the burden of the proof of his case is upon him, and if he does not make it, there will be a bar.

Again, he shows a patent in May, 1856; but we know that a right of entry must accrue by virtue of a location and survey; and we also know that the different district surveyors' offices, by law, were open for locations and surveys early in 1838, nearly twenty-one years since; and as the survey upon which the patent is founded might then have been made, and, it not being...