Trahan v. Roberts, 2169.

• Citation: 48 S.W.2d 503
• Decision Date: 07 April 1932
• Docket Number: No. 2169.,2169.
• Parties: TRAHAN et al. v. ROBERTS et al.
• Court: Court of Appeals of Texas

Page 503

48 S.W.2d 503

TRAHAN et al. v. ROBERTS et al.

No. 2169.

Court of Civil Appeals of Texas. Beaumont.

April 7, 1932.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Trespass to try title by John Trahan and others against Claude C. Roberts and others. From judgment dismissing cause on motion, plaintiffs appeal.

Affirmed.

D. E. O'Fiel, of Beaumont, for appellants.

Orgain, Carroll & Bell and O. S. Parker, all of Beaumont, for appellees.

O'QUINN, J.

As best we can gather from the record, this case was filed in the district court of Jefferson county, on September 14, 1915, by John Trahan et al. against Claude C. Roberts, in trespass to try title to 45.7 acres of land described at "Lot No. 4 of Subdivision of the Munson Bouse 320 acre survey in said county." The file number of this suit on the docket of said court was 11311. All the record information relative to this suit is reflected by the docket entries on the judge's trial docket. According to these entries, the cause was "continued by agreement" on December 15, 1915. April 7, 1916, it was "passed for settlement"; September 18, 1916, it was "continued for settlement"; November 7, 1916, "continued by agreement." The same order was made December 4, 1916, February 5, 1917, April 2, 1917, and September 17, 1917. On December 17, 1917, it was "continued for settlement." This order was repeated February 2, 1918, April 4, 1918, and June 3, 1918. On October 7, 1918, the docket entry was "settled per decree on file."

The case then disappeared from the docket, and the testimony of J. C. Safley, deputy district clerk, is that it was removed from the docket and was lodged with the "disposed of cases." The next, in order of time, we find what is denominated an interpleader, but was in fact a second amended original petition, filed June 13, 1925, which is a petition in trespass to try title with prayer for judgment for and possession of the land in question. This petition suggests the death of defendant Roberts, and named his heirs as his surviving wife and five children, naming them. It also alleged that, since the filing of the suit and while same was pending, I. R. Bordages, Lon D. Cartwright, and the Gulf Production Company, a corporation, had acquired and were claiming some interest in the land, and asked that they be cited to answer. Plaintiffs in this pleading also alleged that an agreement for judgment (the one stated in the docket entry above shown) had been had by and between the parties by which plaintiffs were to recover the mineral rights in said land, and defendant Claude C. Roberts was to recover the surface rights therein, and that pursuant to said agreement the court entered said docket entry and so rendered judgment, but that by oversight said agreed judgment had not been prepared and entered on the minutes of the court, but that defendants knew and had notice of said judgment when they acquired their claimed rights in and to said land. In the alternative, they prayed for judgment for the mineral rights in said land, if the agreed judgment by them pleaded was binding on the parties. They also prayed that said judgment be entered nunc pro tunc.

There does not appear any order restoring the cause to the docket, or permission of the court to file amended pleadings, though the amended petition recited leave of the court. No action of any nature was taken under or because of this pleading. No one answered it, and it was apparently forgotten. On March 31, 1927, another pleading styled "plaintiffs' second amended original petition" was filed. It recited leave of the court to file, but there is nothing on the trial docket to indicate such. This petition was in trespass to try title and for damages, and named numerous new parties, both plaintiffs and defendants, reciting that the new defendants had not been cited, that pending the suit the original defendant had died, and that the new parties defendant had acquired all the interest and title held by the original defendant, were purchasers pendente lite, and prayed for judgment against all of the defendants for the land and damages. No action was taken by the court under this instrument, although numerous parties named in it as new defendants filed disclaimers or other answers thereto, but was wholly ignored and abandoned by the plaintiffs and those signing as their attorneys.

We next find that on November 15, 1929, an instrument was filed styled "plaintiffs' first amended original petition." It was signed by a new attorney, and recites that it was filed with leave of the court, but there is no docket entry to so show. It recites that it was filed, among other things, for the purpose of making new parties. This petition names only a portion of the plaintiffs named in previous pleadings, but adds several others not previously named. It does not name any executor or administrator of the estate of the original defendant, Claude C. Roberts, deceased, and omits several who had been named as defendants in previously filed amended petitions, and names several parties as defendants for the first time. It was explained by the attorney, who filed this petition, that at the time he filed it the papers in the case were lost, and that he did not know just what had been filed, he not having had any previous connection with the case, so he denominated the paper as "first amended original petition." This petition was in the form of trespass to try title, and alleged the death of the original defendant, Roberts, and that he "left surviving him as his successors in title and as purchasers pendente lite herein, the above named parties who are made defendants in his stead and who are being sued herein by plaintiffs for the same property as they sued for in plaintiffs' original petition against the said Claude C. Roberts." In this petition, plaintiffs pleaded title to the land in suit by the three, five, ten, and twenty-five year statutes of limitation. The prayer was that the defendants, "and each of them, be cited to answer, and that plaintiffs have judgment for the title and possession of the land and for damages." This was the petition on which it was sought to try the case.

In this state of the record, on September 18, 1930, appellees Lon D. Cartwright, J. E. Broussard, Charles G. Hooks, Tide Water Oil Company, and Gulf Production Company filed their motions to dismiss the suit on the grounds that the original suit of Trahan v. Roberts had abated by the death of the sole defendant, Claude C. Roberts, and no further steps necessary to further proceedings had been taken, and because said original suit had been abandoned.

October 16, 1930, appellants filed motion to enter judgment nunc pro tunc as of October 7, 1918 (the date of the docket entry "settled per decree on file"), setting out the docket entries down to and including the last mentioned, and alleged that said agreed judgment then and there became and was a valid, binding, and final judgment as between the parties to said judgment and their privies, including the present defendants; that said agreed judgment provided that plaintiffs should recover all the mineral rights in said land, and the defendant Roberts should recover the surface rights therein; that said agreed judgment by oversight was never prepared or filed or entered on the minutes of the court, all of which was unknown to them "until recent years," when the absence of same was discovered by them; that said agreed judgment was and is a valid judgment binding upon the "parties to this cause," and the present defendants holding title under "the said Claude C. Roberts are in privity with said judgment, and same is binding upon them," and prayed that said judgment be entered nunc pro tunc as of October 7, 1918, and that plaintiffs have judgment for the oil, gas, and other minerals under the land, and that defendants be given judgment for the surface rights in and to said land.

To this motion, the various defendants, November 7, 1930, answered by general demurrer, general denial, and specially that this suit was filed against Claude C. Roberts on September 14, 1915, and that no lis pendens notice or any other kind of notice of the pendency of the proceedings was placed of record to give persons dealing with said defendant, who was in possession of the land in question, any notice of any claim by plaintiffs. They denied that...