Starr v. Schoellkopf Co.

• Decision Date: 09 March 1938
• Docket Number: No. 2145-7059.,2145-7059.
• Parties: STARR et ux. v. SCHOELLKOPF CO.
• Court: Texas Supreme Court

113 S.W.2d 1227

STARR et ux. v. SCHOELLKOPF CO.

No. 2145-7059.

Commission of Appeals of Texas, Section A.

March 9, 1938.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by the Schoellkopf Company against Paul Starr and wife in trespass to try title. Judgment for defendants was reversed and rendered by the Court of Civil Appeals, 88 S.W.2d 564, and the defendants bring error.

Affirmed.

W. R. Petty, of Palestine, for plaintiffs in error.

E. V. Swift, of Palestine, for defendant in error.

GERMAN, Commissioner.

On November 19, 1918, G. H. Schoellkopf filed suit in the district court of Anderson county, Tex., against Paul Starr and wife, Mrs. Paul Starr. This suit was in the statutory form of trespass to try title to recover 177 acres of land patented to the heirs of Thomas Williams. Both Starr and wife answered. Their answers consisted of a general denial and plea of not guilty, of a plea of improvements in good faith, and of a very imperfect plea of claim of title under the ten years' statute of limitation, Vernon's Ann.Civ.St. art. 5510.

On January 23, 1920, judgment was entered in that case. The judgment shows the style of the case as G. H. Schoellkopf v. Paul Starr. It recites that plaintiff and defendant appeared and announced ready for trial, and that the court found in favor of plaintiff. It then proceeds to adjudge in favor of plaintiff Schoellkopf and against defendant Paul Starr title and possession of the land described in plaintiff's petition. It was further decreed that defendant Paul Starr take nothing on his plea for improvements in good faith. Mrs. Starr is nowhere mentioned in the judgment. This judgment became final, and writ of possession was issued under which both Starr and wife were dispossessed, and plaintiff Schoellkopf was placed in possession of the land.

On the 31st day of January, 1922, Paul Starr obtained a deed of conveyance from one L. W. Williams. It was not shown that Williams ever had any title to the land either as one of the original patentees or by inheritance or otherwise. Some time after the date of this deed, Starr and wife again took possession of the land. G. H. Schoellkopf made a conveyance of the land to the Schoellkopf Company, and on November 21, 1933, that company instituted the present suit against Starr and wife. The suit was in the nature of trespass to try title, but by supplemental pleading the question of res judicata by reason of the prior judgment of January 23, 1920, was brought into the cause. The trial court withdrew the case from the jury and rendered judgment in favor of defendants. It is recited in the judgment that the court found that the judgment of January 23, 1920, was void, because it was not a final judgment. This was predicated on the ground that it did not dispose of Mrs. Starr. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of the plaintiff. 88 S.W.2d 564.

Only two questions are presented here. The first is as to the validity of the judgment of January 23, 1920. Was it a final judgment because it made no mention of Mrs. Starr? There is nothing to show that the entire record made in the first suit was offered in...