Walton v. Stinson

• Decision Date: 30 March 1940
• Docket Number: No. 12851.,12851.
• Citation: 140 S.W.2d 497
• Parties: WALTON v. STINSON et al.
• Court: Texas Court of Appeals

140 S.W.2d 497

WALTON v. STINSON et al.

No. 12851.

Court of Civil Appeals of Texas. Dallas.

March 30, 1940.

Rehearing Denied May 11, 1940.

Appeal from District Court, Dallas County; John A. Rawlins, Judge.

Action of trespass to try title to real estate by Jeff D. Stinson and another against Wash Walton, wherein defendant interposed cross-action claiming ownership. From a judgment for plaintiffs, defendant appeals.

Affirmed.

W. E. Pinkston and W. L. Curtis, both of Dallas, for appellant.

Lively, Dougherty & Alexander, of Dallas, for appellees.

BOND, Chief Justice.

This appeal is from a plaintiffs' judgment in an action of trespass to try title. To such a suit, filed by Jeff D. Stinson and Claude C. Westerfeld against Wash Walton, the latter answered by a plea of not guilty, and the three, five, ten, and twenty-five year statute of limitation; also interposing a cross action against plaintiffs, asserting title to an acreage which included the land described in plaintiff's petition. Defendant claimed ownership of the entire realty, with peaceable, adverse possession thereof for more than twenty-five years, holding under recorded deed or deeds; and for damages in the sum of $10,000, the value of six houses situated on the property, alleged to have been destroyed. All issues being properly joined, the case proceeded to a jury trial, when, after submission of evidence, the court ruled that no issues of fact appeared, and withdrew the case from the jury. Thereafter, judgment was rendered for plaintiffs as prayed, and against the defendant on his cross action.

The present litigation grew out of cause No. 24797-A in the County Court of Dallas County at Law, styled A. L. Moody v. Wisdom et al., wherein Moody secured judgment for $268, with interest. Execution issued, was placed with the constable and the property here involved sold on September 8, 1917. An insufficient amount was realized to satisfy the judgment, and thereafter, on August 23, 1926, the same was duly abstracted. Later, cause No. 41551-A/D, O. L. Moody v. Wash Walton, was filed in the 95th District Court of Dallas County, to foreclose the judgment lien on the same property; a jury trial and verdict on many issues resulted in another judgment of date January 10, 1931, under which such property was sold by sheriff's deed to plaintiff Stinson, on February 2, 1932. The judgment in cause No. 41551-D recites that the credit given in the county court case, No. 24797-A, by virtue of the sale in 1917, was canceled and held for naught. The statement of facts herein sets forth the jury verdict in the district court case, No. 41551-D, issues 19 and 20 being:

"(19) From a preponderance of the evidence before you, how much principal and interest do you find and believe there would now be due upon the judgment obtained by the plaintiff, O. L. Moody, against the defendant, Wash Walton, in the county court case of Moody v. Wisdom in the event no credits have been made upon said judgment; and in answering this question you are instructed that you cannot find more than $483.74. Answer in dollars and cents. Answer: No Dollars, no cents.

"(20) Do you find and believe from a preponderance of the evidence before you that the three acres of land described in the petition of plaintiff, O. L. Moody, is now the homestead of the defendant, Wash Walton? Your answer to this issue will be No. Answer: No."

The court's decree in the suit just referred to established a judgment lien for the amount of $483.74, and foreclosed same, in part reciting: "It is therefore ordered, adjudged and decreed by the court that the judgment lien as it existed July 22nd, 1927, and as it has at any and all times since existed upon the above mentioned land hereinafter fully described be and the same is hereby recognized, established and foreclosed and the clerk of this court is hereby ordered and directed to issue an order of sale directed to the sheriff or any constable of Dallas County commanding him to seize and sell the said tract of land as under execution and he is directed to apply the proceeds thereof to the payment and satisfaction of the said sum of $483.74, together with all interest that may hereafter be due thereon as aforesaid, and the costs of this suit, and if the said land shall sell for more than sufficient to pay off and satisfy said sum of money then the said officer is directed to pay over the excess to the defendant, Wash Walton, unless otherwise hereinafter provided."

Appellant here contends, (1) that the judgment in cause No. 41551-D, O. L. Moody v. Wash Walton, is wholly void perforce of the jury answer—"No Dollars, no cents.", to the issue No. 19 above; the court fixing a judgment lien for $483.74 in the face of issue 19, and without setting same aside; (2) the original county court judgment being abstracted August 23, 1926, at a time when the property was indisputably homestead, no judgment lien was fixed, nor could one attach upon the granting of divorce...