Ward v. Scarborough

Decision Date11 January 1922
Docket Number(No. 274-3504.)
CourtTexas Supreme Court

Conner & McRae, of Eastland, for plaintiff in error.

J. R. Stubblefield, of Eastland, and F. G. Morris and Geo. E. Wallace, both of El Paso, for defendants in error.


Defendants in error, Mrs. Willie Scarborough and her sons, Jesse, Chunk, and Moliere Scarborough, brought suit in the district court of Eastland county against E. J. Ward, plaintiff in error, and against his father, John Ward, and his brother, Gus Ward, for the recovery of 2,840 acres of land situated in said county, which they allege they had conveyed to E. J. Ward under circumstances claimed by them to create a constructive trust therein in their favor, or, in the alternative, for the recovery of damages in the sum of $104,260.

The Wards filed an answer consisting of a general demurrer, special exceptions, general denial, special denials, the statute of limitation of two years, and laches. All of said exceptions, both general and special, were overruled. There was a trial by jury, and at the close of the trial the Scarboroughs dismissed their suit against John and Gus Ward, and elected to rely upon their claim that the land sued for was impressed with a constructive trust in their favor in the hands of E. J. Ward.

The case was submitted to the jury on special issues which were answered in accordance with the contention of the Scarboroughs as to the circumstances under which they conveyed the land to E. J. Ward.

Upon such verdict the court entered a judgment dated April 21, 1919, declaring that E. J. Ward held the legal title in trust for the Scarboroughs (except as to a half interest in prospective royalties under an undeveloped oil lease expiring in December, 1919), and that the Scarboroughs recover of said Ward title to and possession of said land subject to such interest in such prospective royalties, but providing that no writ of possession should issue until all moneys paid by Ward to the Scarboroughs therefor and all moneys paid by Ward in discharge of incumbrances on such land should be refunded to him, and that, unless such moneys should be refunded within 90 days from the time said judgment should become final, the judgment in their favor should cease to be of any force or effect.

The jury having found that the reasonable market value of said land at the date of the conveyance to Ward, exclusive of the royalty interest adjudged to him, was $8 per acre, the judgment further provided that he should have a right to satisfy the recovery of said Scarboroughs against him by paying to them the sum of $8,520, being the difference between the sum he actually paid them for the land and the value of the same at $8 per acre, said sum to bear interest from date of said purchase at legal rate. It was also provided that such payment should be made within 90 days from the date when such judgment should become final.

The Scarboroughs excepted to such judgment and gave notice of appeal at the time it was rendered. E. J. Ward filed a motion for new trial, which was overruled on the 17th day of May, 1919, at which time he also gave notice of appeal. The order of the court overruling the motion for new trial provided that all parties to the case be allowed 90 days after adjournment of the court in which to prepare, present, and have approved and filed a statement of facts and bills of exception. The court adjourned for the term on May 17, 1919.

The Scarboroughs filed an appeal bond on the 22d day of May, 1919. They complained in their appeal of that part of the judgment which permitted Ward to retain the land upon the payment to them of $8,520 and interest. The issues so raised did not require the aid of a statement of facts to enable the court to pass upon the same, and they therefore took out a transcript of the record only. They filed such transcript in the Court of Civil Appeals in the Second Supreme Judicial District at Fort Worth on the 18th day of July, 1919, and the case was duly entered on the docket of that court.

The Supreme Court, under its statutory authority to equalize the dockets of the Courts of Civil Appeals, ordered this appeal transferred to the Court of Civil Appeals for the Eighth Supreme Judicial District at El Paso, and on December 12, 1919, the Court of Civil Appeals for said Second District made its order so transferring said appeal.

On the 21st day of January, 1920, the Court of Civil Appeals for said Eighth District set said case for submission on the 12th day of February, 1920. After it was so set for submission, E. J. Ward, appellee therein, filed a brief in said cause in said court in which he complained by appropriate cross-assignments of error of the action of the trial court in overruling his general and special exceptions.

The case was submitted to said court on said 12th day of February, 1920, and thereafter, on the 11th day of March, 1920, said court overruled said Ward's cross-assignments of error, sustained the assignments of error presented by the Scarboroughs, appellants therein, reformed the judgment as prayed by them, and, as so reformed, affirmed it. (Civ. App.) 220 S. W. 274.

Ward, appellee therein, filed a motion for rehearing, which was overruled on April 1, 1920, and he thereupon applied for a writ of error. The Supreme Court granted his application and transferred the case to this section of the Commission of Appeals for consideration. It was submitted on oral and written arguments and briefs for both parties. After full consideration we were of the opinion that none of the specifications of error presented in the application were well taken, and recommended that the judgment of the Court of Civil Appeals be affirmed.

Ward did not file either bills of exception or statement of facts during the time allowed by the order of court hereinbefore set out, but on August 14, 1919, filed an application for an extension of time in which to file the same, which application was granted by the trial court, and order entered extending the time to and including September 14, 1919. He filed bills of exception and statement of facts on the 13th day of September, 1919.

On November 7, 1919, Ward filed a petition for writ of error to the Court of Civil Appeals for the Second District at Fort Worth, to which court the same was properly returnable, and on November 17, 1919, filed assignments of error, and his briefs in this case are based thereon.

On January 29, 1920, after the appeal case at El Paso was set for submission, he filed the transcript in his writ of error case in the Court at Fort Worth, and on the 19th day of March, 1920, after the Court of Civil Appeals at El Paso had reformed and affirmed the judgment of the trial court, Ward filed his brief as plaintiff in error in the Court of Civil Appeals at Fort Worth. The first seven assignments of error contained therein are the same as the seven cross-assignments of error filed by him in the appeal case in the Court at El Paso. The remaining fourteen assignments in said brief require the aid of a statement of facts to enable the court to consider them, one assignment complaining of the refusal of his request for a peremptory charge, two complaining of the action of the court in rendering judgment for the Scarboroughs under the evidence adduced, four complaining of the overruling of objections made by him to the court's charge, and the remaining seven complaining of the rulings of the Court in admitting evidence at the trial over his objection.

The Scarboroughs on February 9, 1920, within 11 days after the filing of the transcript on the writ of error at Fort Worth, filed in said court the following motions: (a) To dismiss the writ of error; (b) to strike out assignments of error; (c) to strike out bills of exceptions; (d) to strike out statement of facts. None of these motions appear to have been acted on except the motion to dismiss.

On the 15th day of May, 1920, after motion for rehearing in the appeal case at El Paso had been overruled, but before the time allowed by law for an application to the Supreme Court for writ of error had expired, the Court of Civil Appeals at Fort Worth granted said motion and dismissed the writ of error. 223 S. W. 1107. Plaintiff in error Ward, applied for writ of error from such judgment of dismissal, and the same was granted by the Supreme Court and referred to this section of the Commission of Appeals for consideration. This case was submitted in this court at the same time and under the same circumstances as the appeal case above referred to.

Plaintiff in error by appropriate assignments complains of the action of the Court of Civil Appeals in dismissing his writ of error. The substance of the propositions of law asserted by his several assignments of error is that he had a right under the Constitution and laws of this state to an appeal by writ of error, and that he could not be deprived of that right by any action taken by the opposing parties, and particularly so in this instance, because the transcript on appeal which was transferred to the Court of Civil Appeals at El Paso did not contain his bills of exception, and was not accompanied by a statement of facts, and that by reason thereof the Court of Civil Appeals at El Paso acquired jurisdiction of only a part of the case, and that the Court of Civil Appeals at Fort Worth was vested by his writ of error proceeding with jurisdiction to hear and determine the remainder of the case based on his assignments of error, the consideration of which required that his bills of...

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24 cases
  • Cleveland v. Ward
    • United States
    • Texas Supreme Court
    • June 9, 1926
    ...(8); Dawson v. Dawson (Tex. Civ. App.) 136 S. W. 1149; Ward v. Scarborough (Tex. Civ. App.) 223 S. W. 1107, and cases cited in (Tex. Com. App.) 236 S. W. 441. The injunction proceeding was not appealed, and no motion made to dissolve or vacate in the trial court. On the contrary, the bank, ......
  • First Dallas Petroleum, Inc. v. Hawkins, 05-86-00232-CV
    • United States
    • Texas Court of Appeals
    • February 25, 1987
    ...as an appeal when the other requirements of a writ of error have been met. Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965); Ward v. Scarborough, 236 S.W. 441, 444 (Tex.Comm'n App.1922, judgmt adopted); Behar v. Patrick, 680 S.W.2d 36, 38 (Tex.App.--Amarillo 1984, no writ). This holding co......
  • Ward v. Scarborough
    • United States
    • Texas Supreme Court
    • January 11, 1922
    ...(220 S. W. 274), and defendant E. J. Ward brings error. Affirmed. See, also (Civ. App.) 219 S. W. 505; (Civ. App.) 223 S. W. 1107; 236 S. W. 441. Conner & McRae, of Eastland, for plaintiff in J. R. Stubblefield, of Eastland, and F. G. Morris and Geo. E. Wallace, both of El Paso, for defenda......
  • Motsenbocker v. Wyatt
    • United States
    • Texas Supreme Court
    • June 26, 1963
    ...with reference to consideration of cross-points; Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427; Ward v. Scarborough, Tex.Comm.App., 236 S.W. 441. It is urged here that we may not properly review the Court of Civil Appeals' action in refusing to consider Motsenbocker......
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