Stith v. Moore

• Decision Date: 11 April 1906
• Citation: 95 S.W. 587
• Parties: STITH v. MOORE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 587

95 S.W. 587

STITH v. MOORE et al.^*

Court of Civil Appeals of Texas.

April 11, 1906.

Rehearing Denied May 23, 1906.

Error from District Court, Llano County; Clarence Martin, Judge.

Action by Knight Stith against W. J. Moore and others. Judgment for defendants and plaintiff brings error. Affirmed.

Slator & Oatman and John Dowell, for plaintiff in error. Charles L. Lauderdale and McLean & Spears, for defendants in error.

KEY, J.

The plaintiff Knight Stith brought this suit against the defendants W. J. Moore, T. J. Moore, Charles Schreiner, and Ben Collins. The suit was an action of trespass to try title and to cancel certain deeds, under which the defendants Schreiner and the Moores claim. There was a nonjury trial resulting in a judgment for the defendants, and the plaintiff has brought the case up by writ of error.

Disregarding the order in which the case is presented in this court, and treating it chronologically, we dispose first of the question relating to the plaintiff's application to have an attorney appointed to represent him in the court below. The minutes of the court fail to show and there is no bill of exception showing that the court was requested to or, in fact, did make any ruling upon the application. The trial court made an indorsement on the application to the effect that after hearing it read, he attempted to secure an attorney to represent the plaintiff, but was unable to do so, because all of the attorneys residing in Llano county were disqualified. When that indorsement was made is not shown, but the application itself is marked "filed December 5th, 1904." The case was tried and judgment rendered August 26, 1904, several months before the application was filed. The judgment recites that both parties, the plaintiff and the defendants, by their respective attorneys, appeared at the trial; and the statement of facts is signed by Slator & Oatman, attorneys for the plaintiff, and that firm, together with another attorney, is representing the plaintiff in this court. Therefore the record showing affirmatively that the plaintiff was represented in the court below, we hold that no reversible error is shown in reference to the application to have an attorney appointed for the plaintiff. The defendant Ben Collins was served by publication, and we are asked to reverse the judgment because no attorney was appointed to represent him, as required by statute. The failure to appoint an attorney to represent the defendant Collins did not affect the jurisdiction of the court, and therefore the plaintiff cannot be heard to complain upon that ground. Such failure was an irregularity of which Collins alone could complain; but as the judgment is in his favor, he has no ground upon which to base a complaint, and the plaintiff is not entitled to have the judgment set aside because of the failure referred to. Crosby v. Bannowsky (Tex. Sup.) 68 S. W. 472.

No error was committed in not granting the plaintiff's application for a continuance. It was presented on June 14, 1904, and the case was postponed until August 26, 1904. All the witnesses referred to in the application appeared and testified, except the defendant Ben Collins, and it was not shown that any further diligence was used to procure his testimony after the case was postponed. Watson v. Manufacturing Co., 66 Tex. 558, 2 S. W. 353; Brewing Association v. Walker, 23 Tex. Civ. App. 7, 54 S. W. 360. Ben Collins conveyed the land in controversy in trust to Richard Wooley, to be conveyed by the latter to the Bessemer-Llano Development Company, which was done. Thereafter the property of the development company was placed in the hands of a receiver by the district court of Bexar county, and the land in controversy was sold by the receiver, and bid in by the defendant W. J. Moore, who caused the deed...