St. Matthews Methodist Church v. Watrous

• Citation: 191 S.W.2d 489
• Decision Date: 19 December 1945
• Docket Number: No. 9536.,9536.
• Parties: ST. MATTHEWS METHODIST CHURCH et al. v. WATROUS et al.
• Court: Court of Appeals of Texas

191 S.W.2d 489

ST. MATTHEWS METHODIST CHURCH et al. v. WATROUS et al.

No. 9536.

Court of Civil Appeals of Texas. Austin.

December 19, 1945.

Appeal from County Court at Law, Travis County; D. H. Doom, Judge.

Suit by St. Matthews Methodist Church and others against Bessie Watrous and another to permanently enjoin execution of a writ of possession under a judgment of forcible detainer. From a judgment dissolving the temporary restraining order and dismissing the suit, plaintiffs appeal. On defendants' motion to affirm on certificate.

Motion overruled and appeal dismissed.

No briefs filed for appellants.

No briefs filed for appellees.

McCLENDON, Chief Justice.

Appeal from a judgment dissolving a temporary restraining order and dismissing a suit to permanently enjoin execution of a writ of possession under a judgment of forcible detainer. In the suit, brought by "St. Matthews Methodist Church, Jim Phillips and Bertha Clark, Trustees," against Bessie Watrous, plaintiffs (or plaintiff) sought a temporary restraining order against the sheriff and prayed that same be made permanent on final hearing. The ground of the sought relief was that the detainer suit was against Reverend J. N. Hill, who did not have possession of the property; and "That your petitioner, the plaintiff herein, is rightfully in possession of said property and said Forcible Detainer suit was not filed against your petitioner, the plaintiffs herein, and said execution now in the hands of Sheriff W. H. Collins of Travis County, Texas, is not directed at the plaintiff herein but against said J. N. Hill."

Appellee has filed a motion to affirm on certificate on the ground that the appeal is frivolous, and brought for delay only. The motion is manifestly not well taken. The only ground which will support affirmance on certificate is failure "to file a transcript of the record in the proper time." Rule 387, T.R.C.P.

We have reached the conclusion, however, that this court has no jurisdiction of the suit, and that the appeal should be dismissed for reasons stated below.

The suit was brought in the justice court against Jim Hill, Jim Phillips, Bertha Clark, and four others, the docket entry showing that they were "Trustees of the St. Matthews Methodist Church," the citation to the several defendants also recited that fact. Judgment was rendered for defendants upon a trial at which came "all parties both Plaintiff and Defendant, together with their attorney's, and announced ready for trial." Appeal was duly perfected to the county court at law, in which court judgment of restitution was rendered by default on August 22, 1945. On the same day at 3 p. m. verified motion for new trial was filed by "St. Matthews Methodist Church, colored, J. M. Hill, pastor, by their attorney, Ayers K. Ross." The ground of the motion was: "It was defendant's understanding that said case had been set for 2: P. M. and for that reason defendant did not appear in court at 9: A. M. of this date."

Also on the same day at 2:50 p. m. an unverified motion for new trial was filed by "the defendant" in said cause, and signed by the same attorney. This motion asserted that "because the court was not on the bench on the morning of August 22, 1945, but was at home sick, said cause should have gone over until another date to be fixed by the court." August 25, 1945, an order was entered overruling "motion of defendant for a new trial," the order reciting that both parties appeared "by and...