Vestal v. Jackson
| Decision Date | 24 April 1980 |
| Docket Number | No. 6148,6148 |
| Citation | 598 S.W.2d 724 |
| Parties | Truett H. VESTAL et al., Appellants, v. M. A. JACKSON et ux., Appellees. |
| Court | Texas Court of Appeals |
This is a suit brought by Appellees for partition of the surface estate in approximately 297 acres of land located in Leon County, Texas.
On April 4, 1979, the trial court entered its first decree in this case, finding that the surface estate was susceptible of partition in kind, that the land was of substantially equal value throughout, and that Appellees were entitled to 35/36ths of the property and Appellants were entitled to 1/36th. The court ordered the property partitioned accordingly, appointing three commissioners to effectuate said order. No appeal was taken from this first order.
On or about June 21, 1979, Appellants served interrogatories on Appellee, M. A. Jackson, inquiring primarily of matters pertaining to the mineral wealth of the land in question. Also at that time Appellants filed a Plea in Abatement alleging that there had recently been "stock piling, removal and grading of commercial quantities of minerals for the sites", and asking the court to delay further proceedings until the interrogatories propounded to the Appellee had been answered. The record does not reflect any action on this plea by the trial court.
On July 5, 1979, the commissioners of partition filed their report.
Appellee failed to answer the interrogatories served and Appellants filed a Motion for Sanctions for Failure to Answer Interrogatories on July 31, 1979. On August 17, 1979, the trial court heard Appellants' Motion for Sanctions and denied same. On that same day the court, without a jury, proceeded to hear Appellants' Objections to the Report of Commissioners. Judgment was entered overruling Appellants' objections and confirming the commissioners' report. We affirm.
This appeal has been taken on the transcript alone. No statement of facts has been filed and no bills of exception appear in the record. Appellant has assigned seven points of error. Unfortunately, however, all of these points are of such a nature that error cannot be shown in the absence of a statement of facts.
Four of Appellants' seven points relate to the failure of the trial court to abate the final partition proceedings until discovery could be completed and the failure of the trial court to compel answers to the interrogatories served on Appellee M. A. Jackson. As pointed out supra, the record does not contain any order or otherwise reflect any action by the trial court on the Appellants' Plea in Abatement; thus any complaints regarding this purported action of the trial court cannot be considered on appeal. Beale v. Ryan, 40 Tex. 399 (1874); Gregory v. Ward (Beaumont CA 1926) 285 S.W. 935, modified and affirmed 18 S.W.2d 1049, 118 Tex. 526 (1929); Cole v. Grigsby (Tex. CA 1894) 35 S.W. 680, affirmed 35 S.W. 792, 89 Tex. 223 (1894). Moreover, the propriety of a court's order sustaining or overruling a plea in abatement would depend on the evidence adduced at the hearing on the plea and the order could not be reviewed in the absence of a statement of facts. Gooch v. Sandboe (Galveston CA 1934) 69 S.W.2d 215, error dismissed; Geyer v. Jones (San Antonio CA 1936) 93 S.W.2d 1192, error dismissed. The transcript in this case shows that the trial court denied Appellants' Motion for Sanctions for Failure to Answer Interrogatories. The question of whether or not to impose sanctions for failure to make discovery is addressed to the sound discretion of the trial court. United States Leasing Corp. v. O'Neill (Houston 14th CA 1977) 553 S.W.2d 11, no writ; Lueg v. Tewell (Corpus Christi CA 1978) 572 S.W.2d 97, no writ. In the absence of a statement...
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Greenstein, Logan & Co. v. Burgess Marketing, Inc.
...appellate record. Abuse of discretion is an issue that cannot be determined without a record of the discovery hearing. See Vestal v. Jackson, 598 S.W.2d 724, 726 (Tex.Civ.App.--Waco 1980, no writ). Greenstein Logan apparently contends under point one that the court, acting on its own and wi......
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Upchurch v. Albear, 082599
...we cannot determine whether the trial court erred in denying the pleas in abatement and in refusing to reconsider the pleas. Vestal v. Jackson, 598 S.W.2d 724, 725 (Tex.Civ.App.--Waco 1980, no writ). Cross-issue two raised by the clients asserting that the trial court erred in denying and i......
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Jimmie Luecke Children P'ship, Ltd. v. Pruncutz
...is on the party who attacks the report of the commissioners to show that the portion allotted to him was not equal and just. Vestal v. Jackson, 598 S.W.2d 724, 726 (Tex. Civ. App.—Waco 1980, no writ). The Partnership contends the report unequally and unjustly divided access between the trac......
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Fiesta Mart, Inc. v. Hall, 01-93-01154-CV
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