Withers v. Crenshaw
| Decision Date | 01 March 1913 |
| Citation | 155 S.W. 1189 |
| Parties | WITHERS v. CRENSHAW et al.<SMALL><SUP>†</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
Trespass to try title by V. F. Withers against J. O. Crenshaw and others. Judgment for defendants, and plaintiff appeals. Affirmed.
J. C. Scott, of Ft. Worth, for appellant. Slay, Simon & Wynn, Robt. G. Johnson, Crenshaw & Boykin, and N. W. Wilkinson, all of Ft. Worth, for appellees.
Mrs. V. F. Withers, a widow, sues in trespass to try title to recover from Etheyne R. Boaz the south 50 feet of lot No. 1 of the C. T. Hodge addition to the city of Ft. Worth. The real controversy is one boundary between the south and north halves of the lot and involves a strip of land six feet in width. J. O. Crenshaw, the original owner of the entire lot, was made a party defendant as a warrantor of the title, and the Texas Bitulithic Company and the city of Ft. Worth were made defendants upon an allegation that they were asserting some sort of lien against the property for street improvements. All parties answered and the defendant Boaz, among other defenses, pleaded that the deed of conveyance from Crenshaw to Withers' grantor by mutual mistake included the land in controversy. The court instructed the jury to return a verdict in favor of the defendant Boaz and submitted to them to find the difference in the value of plaintiff's property at the time of the conveyance from Crenshaw with and without the six feet in controversy. In accordance with the verdict returned, judgment was entered in favor of defendant Boaz for the land in controversy, in favor of the plaintiff against Crenshaw on his warranty for $280.13, and in favor of the Texas Bitulithic Company for the sum of $217.27, with a foreclosure of its lien against plaintiff's property. Some other matters not necessary to notice were also adjudicated. The plaintiff has appealed.
The first question is one complaining of the court's ruling on appellant's motion "to strike out the pleas of the city of Ft. Worth and the Texas Bitulithic Company because they changed the nature of the suit. We cannot consider the merits of this question, however, for the same is not properly presented. No order of the court on appellant's plea or exception is shown but the matter is attempted to be raised by bill of exception. Rule 53 (142 S. W. xxi) for the county and district courts is: "There shall be no bill of exceptions taken to the judgment of the court rendered upon those matters which at common law constitute the record proper in the case, as the citation, petition, answers, and their supplements and amendments, and motions for a new trial, or in arrest of judgment and final judgment." Rule 65 (142 S. W. xxii) prescribes that: "Judgments rendered upon questions raised upon citations, pleadings, and all other proceedings constituting the record proper, as known at common law, must be entered at the date of each term when pronounced." It is apparent the question here attempted to be raised cannot be presented by a bill of exception which, under the statute and rules, might be filed after the time when all judgments proper are required to be entered.
The second and fifth assignments are grouped. The second is to the effect that the court erred in admitting a certain certificate issued by the city of Ft. Worth July 12, 1910, purporting to evidence a lien against the plaintiff's lot in favor of the Bitulithic Company, and the fifth is to the effect that the court erred in taking away from the jury the question of...
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...minutes of the court, and cannot be shown by a bill of exception. Ilseng v. Carter (Tex. Civ. App.) 158 S. W. 1163; Withers v. Crenshaw (Tex. Civ. App.) 155 S. W. 1189 (writ of error dismissed for want of jurisdiction); Daniel v. Daniel (Tex. Civ. App.) 128 S. W. 471 (writ of error denied);......
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