Roth v. Murray

• Decision Date: 20 December 1911
• Citation: 141 S.W. 515
• Parties: ROTH et al. v. MURRAY, Clerk of Court.
• Court: Texas Supreme Court

141 S.W. 515

ROTH et al. v. MURRAY, Clerk of Court.

Supreme Court of Texas.

December 20, 1911.

Application for mandamus by Henry Roth and others against Joseph Murray, Clerk of Court. Application granted.

Sam C. Lackey and Proctor, Vandenberge, Crain & Lewright, for petitioners.

RAMSEY, J.

Suit was instituted in the district court of De Witt county on September 3, 1906, by Henry Roth and others against Alvina Schroeter and others to recover certain lands. On a trial had in said court on January 8, 1909, a judgment was rendered in favor of the defendants. An appeal to the Court of Civil Appeals for the First Supreme Judicial District was prosecuted, and the case was thereafter transferred to the Court of Civil Appeals for the Fourth Supreme Judicial District, and on May 4, 1910, the judgment of the court below was by the Court of Civil Appeals for said district affirmed in a written opinion (129 S. W. 203), in which it was held, in substance, "that in an action of trespass to try title, in which the pleadings of plaintiff are simply the statutory form of trespass to try title and the answer of defendant a plea of not guilty, equitable relief cannot be obtained by either party, although equities may arise from the evidence in the case," and, since the evident purpose of the evidence was to ingraft a parol trust upon the deed of plaintiff's father, that, under the pleadings, no recovery could be had. Thereafter in due time the appellants filed a motion for rehearing, which was confined exclusively to the question discussed and decided by the Court of Civil Appeals, and to that question only. Thereafter, on June 8, 1910, the Court of Civil Appeals filed another opinion, in which, in substance, in respect to the question discussed and decided in its first opinion, it was held that the rule therein laid down had no application to a "case like this, where no equitable relief is sought, but where plaintiff's right of recovery is simply based upon an equitable title to the land." However, the case was nevertheless affirmed on its merits; the second opinion discussing and disposing of practically all the issues and questions raised on the appeal. This motion for rehearing was not in terms granted, but in both opinions the judgment of the court below was affirmed.

Within 15 days from the filing of this second opinion, relators Louis B. Schroeter and Otto F. Schroeter filed in said Court of Civil Appeals a motion for rehearing in said cause, relating to and complaining of the action and ruling of said court in respect to the matters and things discussed and ruled in the second opinion. This motion was on June 30, 1910, by the said Court of Civil Appeals dismissed. There was no written opinion filed by the court, or...