Stark v. Stefka
| Decision Date | 28 February 1973 |
| Docket Number | No. 11963,11963 |
| Citation | 491 S.W.2d 757 |
| Parties | W. H. STARK, Appellant, v. Charlie STEFKA, Appellee. |
| Court | Texas Court of Appeals |
Cicily Simms, Travis County, Legal Aid & Defender Society, Austin, for appellant.
Mary Wilkov, Brooks Holman, Austin, for appellee.
O'QUINN, Justice.
Charlie Stefka, appellee, brought this suit in trespass to try title to recover a small rural tract of land in Travis County from W . H. Stark, who lived on the land. The case was tried before the court without intervention of a jury in January of 1972, and on February 16 the court entered judgment for Stefka, plaintiiff.
At the trial plaintiff introduced a sheriff's deed to plaintiff, an order of execution, and proof of advertisement of the sale, but did not introduce the judgment, upon which the order issued, in proof of the sheriff's power to sell.
Stark filed a motion for new trial setting up his claim of homestead in the property existing at the time of execution, sale, and making of the deed, and taking the position that the judgment in favor of Stefka was not supported by sufficient evidence justifying execution and levy on the homestead.
The trial court overruled the motion for new trial March 30, 1972, noting in the order Stark's notice of appeal. After Stark had perfected his appeal and the cause had been set for submission and oral argument in this Court, Stefka filed a motion in the trial court to reopen evidence pursuant to Rule 270, Texas Rules of Civil Procedure, seeking to introduce the judgment under which the sheriff's sale and deed were made. Stark also filed a motion offering to prove his claim of homestead. The trial court overruled both motions, and supplemental transcript of these proceedings has been filed in this Court.
Stark was represented by counsel at the trial which resulted in judgment awarding the land to Stefka. Stark was not present, and upon learning that judgment had been entered against him, Stark sought the aid of attorneys in the Travis County Legal Aid and Defender Society, who timely filed a motion for new trial and have represented Stark since that time in this case.
The record shows that Stark's counsel at the trial of his cause made a brief statement to the court in which he asserted that he had notified Stark of the hearing but had not heard from him and could not account for Stark's absence. Counsel offered no evidence in behalf of Stark, did not object to the introduction of any evidence by Stefka, and asked only one question of a witness for Stefka. Counsel on Voir dire asked the deputy sheriff who supervised the sheriff's sale '. . . whether you (the witness) or anyone else from your office made any determination as to whether or not this property you were selling was exempt property or not?' The witness replied, 'Our department did not.'
On appeal Stark seeks reversal of the trial court's judgment and remand of the cause on two grounds. Appellant contends that the judgment is void because the sheriff's deed, in the absence of proof of the judgment and writ issued thereon by which the sheriff made the sale, is insufficient to show title in Stefka. Appellant also contends that the trial court abused its discretion in not granting a new trial upon the ground that the court could not properly determine validity of the forced sale of the homestead because there was insufficient evidence to justify the execution and levy.
In bringing suit in trespass to try title, Stefka assumed the burden of offering proof upon which he might recover on the strength of his own title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). Stark answered by general denial only, but the general denial put Stefka upon proof of his right to recover the land. Harlan's Heirs v. Haynie, 9 Tex. 459, 462 (1853). It is basic and well...
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...of the sheriff's authority to sell, for instance in the recitals of the deed, is insufficient. Berry, 795 S.W.2d at 238; Stark v. Stefka, 491 S.W.2d 757, 759 (Tex.Civ.App.-Austin 1973, no writ). This rule is one of long standing. Mills, 48 S.W.2d at 942; Berry, 795 S.W.2d at 238; Stark, 491......
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