Scarborough v. Bradley

• Decision Date: 29 November 1923
• Docket Number: (No. 1.)
• Citation: 256 S.W. 349
• Parties: SCARBOROUGH v. BRADLEY.
• Court: Texas Court of Appeals

256 S.W. 349

SCARBOROUGH v. BRADLEY.

(No. 1.)

Court of Civil Appeals of Texas. Waco.

November 29, 1923.

Error from District Court, Limestone County; A. M. Blackmon, Judge.

Action by Mrs. Fannie Scarborough against C. S. Bradley. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Emmett Thurmon, of Dallas, for plaintiff in error.

C. S. & J. E. Bradley, of Groesbeck, for defendant in error.

SPIVEY, J.

This is a suit of trespass to try title, brought by plaintiff in error against defendant in error, in which the latter filed an answer containing, among other matters, a disclaimer as to a portion of the land and a cross-action against plaintiff in error as to the remainder, and also a cross-action against J. H. Synnott and A. J. Roberts, the attorneys whose names were signed to the plaintiff's petition. The allegations in the latter cross-action were to the effect that in the filing of the suit they intended to slander and did slander the title of defendant in error and wrongfully filed the suit against him for the purpose of preventing him from making oil leases upon the land, and accordingly prayed judgment against said attorneys in the sum of $20,000 by way of damages.

For the sake of brevity, plaintiff in error will be designated as plaintiff, and defendant in error as defendant herein.

As soon as citation was served upon defendant in plaintiff's suit, he answered as above, and included in his answer the above-mentioned cross-action against plaintiff's attorneys, and caused citation to be served upon them in the city of Dallas, where they were alleged to reside, the citation being in the usual form for an out-county defendant, and recited that a certified copy of defendant's answer, which included said cross-action against them, accompanied the citation, and the citation required said attorneys to appear at the next term of court and answer said cross-action against them.

Prior to the convening of the ensuing term of court, said attorneys filed their plea of privilege to be sued in Dallas county. This plea was in the usual form and was filed on March 4, 1922, and the term of court convened on March 6th thereafter. Their plea, after stating the style of the suit, recites:

"Now come J. H. Synnott and A. J. Roberts, partners, doing business under the firm name and style of Synnott & Roberts, cross-defendants in the above entitled and numbered cause, made cross-defendants by a cross-action contained in the original answer of the defendant C. S. Bradley, individually and as such partners, and say."

The plea then states their residence, and that none of the exceptions in the venue statute apply, etc., and concludes:

"Wherefore, defendants pray the court that the above suit be transferred to the district court of Dallas county, Texas, and for such other orders herein that may be proper and necessary. [Signed] J. H. Synnott, A. J. Roberts, partners, doing business as Synnott & Roberts and also individually."

The record does not show whether they filed the above plea in person or forwarded it by mail.

On March 6th, the day on which court convened, the defendant filed an amended answer which, in so far as the plaintiff is concerned, was substantially the same as his original answer, except that in the amended answer he pleaded the statute of limitation of three years, and in said amended answer omitted all allegations and reference to the above-named attorneys and his cross-action against them.

The case was set for trial March 9th, and on that day, after a hearing, the court instructed the jury to find for defendant upon the ground that there was no evidence to support a recovery by the plaintiff. The entire record appears to have been sent up, and there is no citation or service upon plaintiff, nor any waiver by her, nor any appearance, nor any act disclosed by the record which can be construed into a waiver or appearance, unless, as is contended by defendant the service of the original answer upon Synnott & Roberts in the manner above shown, and their action thereafter in filing their plea of privilege, constituted such notice to the plaintiff and appearance by her as dispensed with further service, and authorized judgment against her on defendant's cross-action.

The judgment was substantially as follows: That the cause "came on to be heard on the regular call of the docket, and thereupon defendant C. S. Bradley appeared and announced that he would dismiss his cross-action against the cross-defendants J. H. Synnott and J. A. Roberts, which was accordingly done," and they were dismissed with their costs, "and thereupon said cause came on for trial between the plaintiff and defendant C. S. Bradley, and it appearing to the court that said cause has been regularly and duly set for trial for this date, and the plaintiff having failed to appear, nevertheless the defendant C. S. Bradley appeared and announced ready for trial." Then recites the hearing of the case before a jury and their verdict, and continues: "And it appearing from the evidence that defendant C. S. Bradley is the legal and equitable owner of the land described in his answer, and that he has paid all of the consideration mentioned in the deed from Fannie Scarborough and husband to Lewis M. Seay [who was grantee of plaintiff and grantor of defendant] * * * and that he has been in possession of and claiming said land under color of title for more than three years before the institution of this suit, holding the same under all of the conditions necessary to perfect title in him, wherefore said defendant ought to recover said land of the plaintiff, and the consideration mentioned in said deed ought to be canceled. It is therefore * * * ordered * * * that the defendant * * * do have and recover of and from plaintiff * * *" the land described in said cross-action, "and that all of the right, title, and interest and claim of the plaintiff * * * in and to said tract of land be and the same is hereby divested out of the plaintiff * * * and the same is vested in the defendant * * * and that the consideration mentioned in said deed from Fannie Scarborough and husband to Lewis M. Seay, recorded [in a certain volume and page] and the implied lien heretofore existing as shown by said deed, be and the same is hereby canceled and annulled, and that all right, title and claim of the plaintiff * * * in * * * said land be and the same is hereby removed as a cloud from the title of the defendant * * * to said land, and that defendant * * * be quieted in his title to said land," and costs are adjudged against the plaintiff.

The question has occurred to us that the defendant's pleading does not state a cause of action, or cross-action, against the plaintiff, but rather...