Scarborough v. Ward

• Decision Date: 21 February 1920
• Docket Number: (No. 9225.)
• Citation: 219 S.W. 505
• Parties: SCARBOROUGH v. WARD et al.
• Court: Texas Court of Appeals

219 S.W. 505

SCARBOROUGH v. WARD et al.

(No. 9225.)

Court of Civil Appeals of Texas. Ft. Worth.

February 21, 1920.

Appeal from District Court, Eastland County; Joe Burkett, Judge.

Suit by Mrs. Willie Scarborough against Gus Ward and another. Judgment for defendants, and plaintiff appeals. Reversed, and rendered for plaintiff, that her cause be dismissed without prejudice.

F. G. Morris and Geo. E. Wallace, both of El Paso, and J. R. Stubblefield, of Eastland, for appellant.

Earl Conner, of Eastland, for appellees.

CONNER, C. J.

The appellant, Mrs. Willie Scarborough, instituted this suit against the appellees, Gus and E. J. Ward, alleging in substance that the plaintiff was the owner of several tracts of land described in the petition and aggregating several hundred acres upon which a lien existed; that the plaintiff had secured a purchaser for the land at the price of $6 per acre with a reservation of the mineral thereon; that the defendants wrongfully and fraudulently induced the proposed purchaser to believe that the land was rough and undesirable, in consequence of which she was unable to sell the land for but $4.50 per acre; that thereafter the defendants became the owners of the land, and the plaintiff's prayer was that she might recover of the defendants the minerals in the land described.

In due season, the defendants answered by way of a general demurrer and a general denial. Thereafter, on November 23, 1918, the case was called for trial, and, plaintiff not being present, the court entered the following decree:

"On this, the 23d day of November, A. D. 1918, comes on in its regular order to be heard the above entered and numbered cause, and came the defendants and announced ready for trial, but the plaintiff fails to appear and prosecute her said suit, and it being made to appear to the court that the counsel representing the plaintiff at this time in said cause was duly notified by a telegram to him at El Paso, Tex., of the setting of said cause, and that said counsel for plaintiff had due notice of the same, the court ordered said cause to proceed. Thereupon came on to be considered the general demurrer of the defendants to the sufficiency of plaintiff's petition herein filed, and, it appearing to the court that plaintiff alleged no cause of action against the defendants in said cause, it is the opinion of the court that plaintiff's petition herein filed shows no cause of action against the defendants herein, and that said general demurrer should in all things be sustained,...