Wright v. Jones

• Decision Date: 05 November 1930
• Docket Number: No. 3483.,3483.
• Citation: 33 S.W.2d 292
• Parties: WRIGHT et al. v. JONES et al.
• Court: Texas Court of Appeals

33 S.W.2d 292

WRIGHT et al. v. JONES et al.

No. 3483.

Court of Civil Appeals of Texas. Amarillo.

November 5, 1930.

Rehearing Denied December 10, 1930.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Suit by Roy Lee Wright and others against Charles H. Jones and others, in which defendants filed a cross-action. From a judgment for defendants, plaintiffs appeal.

Affirmed in part, and in part reversed and remanded.

Lockhart, Garrard & Brown, of Lubbock, for appellants.

John Hancock, of Fort Worth, Scott, Brelsford, McCarty & Brelsford, of Eastland, and J. W. Timmins, of Dallas, for appellees.

RANDOLPH, J.

This suit, in the nature of trespass to try title, was brought in the district court of Gaines county, Tex., by Roy Lee Wright, Jack Wright, Margaret Wright, and Ruth Wright, minors, by their next friend, Annie Lee Wright, to recover from various defendants named four sections of land in Gaines county, Tex. The case was transferred by agreement to the district court of Lubbock county, Tex., and, from a judgment in favor of defendants, this appeal has been taken.

The plaintiffs' petition contained the customary allegations of a petition in trespass to try title, with additional allegations setting out at some length the minority of the plaintiffs, the fact that no administration was had on the estate of their father in whose estate they had an undivided one-half interest, and the invalidity of certain instruments executed by their mother, Annie Lee Wright.

The plaintiffs' first proposition presents as error the following:

"The plaintiffs in this case being minors, could not be charged with constructive notice of the filing of the cross-action of the defendants against them, and there having been no citation or other character of notice served upon them or either of them, the court was without authority to appoint a guardian ad litem to represent such minors, after their suit had been dismissed, and to proceed to trial of the cross-action against them, and was without jurisdiction to render judgment against such minors for the title and possession of the land in controversy."

This petition was answered by defendants, and at the same time the defendants, as cross-plaintiffs, filed their cross-action against the plaintiffs in the suit as cross-defendants, asserting title to the land in such cross-plaintiffs. Apparently, on the same day, but, as the evidence establishes, after the filing of defendants' cross-action, one of the plaintiffs' attorneys appeared in open court and moved the court to continue the cause on account of the absence of his clients, and both he and the attorney for the defendants, or cross-plaintiffs, joined in agreement that the court should set the case for some day certain at the next term of the court, preferably Monday. The court thereupon granted the motion of plaintiffs' attorney for continuance, and also granted the request of both attorneys for the setting of the case for a day certain at the next term.

It is conceded that there was no citation or notice issued and served upon the plaintiffs notifying them of the filing of defendants' cross-action against them; the only service relied on being the constructive service by the appearance of plaintiffs' attorney after the filing of said cross-action. At the next term of the court the plaintiffs' attorney appeared and took a nonsuit for plaintiffs upon their cause of action, but declined to appear for them in the proceedings in the suit upon the cross-action. The trial court, after dismissing the plaintiffs'...