Simmons v. Fisher

• Decision Date: 01 January 1876
• Citation: 46 Tex. 126
• Parties: SARAH SIMMONS ET AL. v. LEVI H. FISHER ET AL.
• Court: Texas Supreme Court

46 Tex. 126

SARAH SIMMONS ET AL.

v.LEVI H. FISHER ET AL.

Supreme Court of Texas.

1876.

ERROR from Rains. Tried below before the Hon. Z. Norton.

A. M. Carter and Jones & Henry, for plaintiffs in error.

Booty & Baker, also for plaintiffs in error.

L. D. King, for defendants in error.

ROBERTS, CHIEF JUSTICE.

Sicily Fisher and her husband, Levi H. Fisher, Margaret Fuller and her husband, Thomas W. Fuller, as plaintiffs, brought suit against Sarah Simmons and her husband, John W. Simmons, and James T. Wafer, as defendants, in which was prayed a partition of a league and labor of land, except six hundred acres out of the southeast corner, (which had been previously conveyed to Robert Coats,) which belonged to them as the heirs of Mabrey Wafer, deceased, whose surviving children and heirs were said Sicily, Margaret, Sarah, and James T.

Service was obtained on Sarah Simmons and her husband by citation, in Panola county, and on James T. Wafer by publication, as a resident of Louisiana.

The suit was brought on the 1st of February, 1871. On the 20th of March, 1872, Levi H. Fisher filed an amended petition, claiming the interest of James T. Wafer, making an exhibit of his deed of conveyance. On the same day Thomas Cain intervened, by leave of court, claiming one thousand acres of land, as the interest of Sarah Simmons, derived through James T. Wafer, making an exhibit of his title, in which, however, there was one link in the chain of title wanting. There was no service of this amended petition and intervention upon the defendants, nor did either of them appear in person or by attorney in the case.

On the same day (20th of March, 1872) the attorneys of Levi H. Fisher, Sicily Fisher, Margaret and Thomas W. Fuller, and Thomas Cain made and filed an agreement, in which the land, except that alleged to belong to Coats, was divided between them, giving Cain one thousand acres and the balance equally to Levi H., Sicily, and Margaret, and leaving the original defendants out entirely.

At the March Term, 1872, a judgment was rendered according to said agreement, appointing commissioners to divide the land, who having made their report, a final decree of partition was rendered on the 18th of November, 1872.

More than two years afterwards, to wit: on the 6th day of August, 1875, a petition for a writ of error was filed by Sarah and John W. Simmons, Letitia Smith and her husband, and Eliza Armstrong and her husband, claiming to be the heirs of James T. Wafer, who is alleged to have died on the 11th of April, 1871, and who are alleged to have been minors at the date of the judgment, and so continued until their marriage in 1874. The petition in error made the following persons defendants, and asked service to be made on them, to wit: Robert Coats and Thomas Cain, by citation to Rains county; Levi H. Fisher, and Sicily Fisher, and Margaret and Thomas W. Fuller, who are alleged to be residents of Louisiana, by citation to their attorneys, W. P. Simmonds, S. S. Weaver, and Clayton Jones, in Hunt county; Levi H. Fisher, as executor of the will of his wife, who died in 1873, and Laura Wafer, widow of James T. Wafer, who did not join as plaintiff, both of whom reside in Louisiana, by a certified copy of the petition in error served personally by some competent person.

The service having been made upon defendants in error in the manner here indicated, a motion was made in this court to dismiss the writ of error, because said service has not been made according to law, and because the right to sue out the writ is barred by the limitation of two years from the date of the judgment, and because some of the plaintiffs in error were not parties in the suit, and showed no interest. Counsel for plaintiffs in error except to this motion, because it is not signed by counsel or by any party to the suit.

After stating the title of the case, the motion commences as follows: “Motion of L. D. King, counsel for Levi H. Fisher and Thomas M. Cain, defendants in error. The above-named defendants in error move the court to dismiss the writ of error in this case, for the following reasons, to wit.” It is not signed at the bottom of the motion.

Counsel, in filing motions, briefs, or any other papers in this court, should properly sign their names to them in a way to make themselves responsible for what is stated in them, and so as to leave no doubt as to the parties for whom they appear. This is usually done by subscribing the instrument. In this instance, though not formally done, it was evidently intended by the counsel; that he filed the motion for the parties named. Though we cannot sanction it as the proper mode, still, as there has been no uniform rule followed on the subject, it would be improper now to disregard the motion entirely on account of that informality.

The grounds of the motion are:

1. That the writ of error is barred, being sued out more than two years after the date of the judgment. The judgment was rendered 18th of November, 1871, and the petition in error was filed on the 6th day of August, 1875.

The answer to this is, that Sarah Simmons was sued as a married woman, and the petitioner in error alleges that she has so continued up to its filing. It also alleges that James T. Wafer, the other defendant, died before the date of the judgment, leaving two minor children, Letitia and Eliza, as his heirs, and that they remained minors until they were married in 1874. The affidavit of Letitia, filed in this court before the motion was made, confirms these allegations, except as to her continuing minority, which is left in doubt from her sworn statement. Besides, these allegations in the petition in error, to make parties in this court, are not contested by the defendants in error so as to raise an issue of fact upon them.

Had it been shown affirmatively that Letitia and Eliza were not minors as alleged, still, Sarah Simmons, being a married woman, the petition in error could be maintained by her and her husband, as the statute of limitations could not run as to her during her coverture, as it is expressly provided in the act of 1846, (Paschal's Dig., art. 1496,) relating to proceedings in the District Court, as well as in the act of limitations of 1841. (Paschal's Dig., arts. 4616, 4617.)

That one of two or more defendants in a judgment may sue...