Watkins v. Kirchain

• Decision Date: 01 January 1853
• Parties: WATKINS v. KIRCHAIN.
• Court: Texas Supreme Court

10 Tex. 375

WATKINS

v.KIRCHAIN.

Supreme Court of Texas.

1853.

Where the answer to a petition for a mandamus discloses sufficient matter of record in the office of the officer who is called upon to show cause why a mandamus should not issue to justify him in his refusal to act, it is not necessary for the answer to be sworn to; it might be otherwise if it set up matter in pais.

It is a sufficient answer to a rule against a surveyor to show cause why he refuses to make a survey on the application of one claiming the privileges of the pre-emption law that the land had previously been surveyed under a certificate, &c., or was covered by an original title. On contestation of the return, or allegation that the prior appropriation was invalid, the parties interested adversely may be made parties, after which the right may be tried. (Note 73.)

Error from Anderson. The petition in this case set out that the petitioner verily believed that the land upon which he had settled and resided was vacant land, and that to claim the benefit of the pre-emption law, and have three hundred and twenty acres, including his improvement, surveyed, he made application to the defendant, surveyor for the county of Anderson, in which district the land was situated, and made the oath prescribed by the statute, but that the said surveyor, although particularly requested to make the survey, wholly neglected and refused to do so. Petitioner prayed that the said defendant, Kirchain, be cited to show cause, if any he could, why a peremptory mandamus should not be granted requiring him to make the survey as required by petitioner, and that he be adjudged to pay costs, &c., &c.

The defendant appeared and answered, in substance, that he refused to survey the land described in the plaintiff's petition because the records and maps of the said surveyor's office showed that some time in the year 1834 or 1835 the said land had been surveyed for and granted to Juan Durst, as agent or purchaser of J. V. Mora, by the government of the State of Coahuila and Texas; that the residence of the said Mora or his heirs was unknown; that the said Durst died about eighteen months since, in the county of Leon, in which county his heirs and legal representatives “now reside;” that the said grant was of record in the office of the clerk of the County Court of Houston county; and that from subsequent conveyances, also of record in said county before the county was separated from Houston county, it appeared that one James Bradshaw was a claimant of said land under the said original grant; that said Bradshaw died some years since, in the county of Nacogdoches; and that letters of administration upon his estate, by the Probate Court of said county, were granted to William Bradshaw, who was a resident citizen of said county of Anderson; but that the residence of the heirs of the said James Bradshaw was unknown to defendants; that he knew nothing of the validity or invalidity of said grant. He asked that the plaintiff be required to make parties of those interested under the grant to this suit.

The plaintiff, among other exceptions, excepted to the sufficiency of the answer, upon the ground that it was not sworn to by the defendant. The court overruled the exceptions, and ruled that the plaintiff should call in the parties interested in the land, under the grant referred to in the answer, as parties in the suit.

The plaintiff declining to comply with the order, the suit was dismissed at his costs. The plaintiff sued out a writ of error, and assigned several grounds of error, two only of which were considered: first, the supposed error of the court in overruling the exception to the answer, and secondly, in requiring other parties to be made.

N. M. Burford, for plaintiff in error. I. The first assignment of error relied upon is that the court erred in not striking out the answer because the same was not sworn to. This ruling was clearly erroneous. And the common-law writers say that both the application for and return to a mandamus must be sworn to. (3 Black, 111; 4 Bacon Abr., 518.) And this court has said that both the application and answer ought to be verified. (See 3 Tex. R., 92.)

II. The next point relied upon is that the court erred in dismissing the suit because the plaintiff would not make other and additional parties. This ruling might have been correct had the pleadings disclosed the fact that the interest of persons not before the court were involved in the suit, but such a position is not sustained by the record. There is nothing either in the petition or answer that discloses the interest of any third party likely to be jeopardized or in anywise affected by the judgment of the court in the cause then pending.

III. Another point relied upon is the insufficiency of the answer or return. For the plaintiff it is contended that the answer gives no legal excuse for the refusal to make the survey. It was incumbent upon the plaintiff to swear that he had settled upon what he believed to be vacant land. The law required this oath to be administered by the surveyor, upon the administering of which the surveyor was required to survey for the applicant three hundred and twenty acres, to include his improvement. (Hart. Dig., arts. 21, 35.) The requirements exacted of the applicant for pre-emption privileges and the duties of the surveyor are both clearly defined by law. The surveyor has no discretion left him. His is but a ministerial act. The kind and quantity of proof upon which he is to act is prescribed by law. This he cannot enlarge nor diminish. As well might a justice of the peace refuse to issue an attachment because he disbelieved the affidavit of the party seeking it. Clearly the surveyor could not look beyond the affidavit of the party claiming the pre-emption privileges.

G. F. Moore, for defendant in error. I. The first error urged is that the answer of the defendant was not sworn to. The authorities referred to by the plaintiff do not sustain the exception. They only show that the petition for a mandamus should be sworn to, but do not discuss the questionas to the return. The defendant being a public officer, his return to the application for a mandamus is sufficiently verified by his official character and oath.

II. The answer is sufficiently certain, (4 Bacon Abr., 518,) and it assuredly discloses an adverse interest in the parties named. It shows more than the records of his office, which would have been sufficient. We doubt whether the defendant is a necessary or proper party to the litigation of the matters involved in this...