Rogers v. Dickson , 176 S.W. 865 ( 1915 )

Suit was filed in the district court of Nolan county September 13, 1912, by J. F. Dickson against his sister Mrs. Ida E. Rogers, as independent executrix of the estate of their mother, Mrs. Annie Dickson, for debt, alleged to be due him for certain work and labor done and material furnished to the community estate of his father and mother, and for money, medicine, doctors' bills, etc., claimed to be due him from the separate estate of his mother. Defendant filed an answer, generally and specially excepting to plaintiff's petition, and denying and answering the allegations therein contained, and also a cross-action, alleging that defendant and plaintiff were the only children and heirs of their deceased parents, and praying for a partition of the estate. On April 2, 1913, the court sustained the defendant's general demurrer and special exceptions to plaintiff's petition, and, the plaintiff declining to amend, his suit was dismissed, and judgment rendered for defendant on her cross-plea, decreeing a partition of certain lots in the town of Sweetwater and the E. 1/2 of the S.E. 1/4 of section 19, block 21, Texas Pacific Railway Company survey in Fisher county. Commissioners were appointed to divide the land, and judgment given defendant for a one-half undivided interest in and to said lands. On April 18, 1913, the commissioners theretofore appointed made their report. On April 25th plaintiff filed his exceptions to said report, and objections to the division of the 80 acres in Fisher county, and alleged that the 30 acres out of said 80 acres apportioned by the commissioners had belonged to said plaintiff for several years prior to said report, as evidenced by a deed of conveyance, and that said report did not in fact award and partition to plaintiff any part of the lands belonging to the community estate of his deceased parents, and he prayed that said partition and division be set aside, which motion and exception was by the court overruled, and said report of the commissioners was confirmed, and this order decreed that:

"The title shall be and is hereby vested in each party to whom a share has been allotted to such share or portion of said property as set apart to said parties respectively by said commissioners in said report as against the other party to this suit," etc.

Later, date not given in transcript, plaintiff's motion for new trial was overruled. April 30th plaintiff filed what he termed an "amended exception and objection" to the division and apportionment of the property made by the commissioners, and asked that the judgment theretofore rendered be set aside, and he be granted a new trial. He attached to this motion certified copies of two deeds, one from G. W. Dickson, his father, to him, conveying the entire 80-acre tract in Fisher county, dated October 14, 1897, and the other from plaintiff and his wife to G. W. Dickson, conveying the south 50 acres out of the 80-tract, and dated June 8, 1898. The consideration mentioned in the first deed was $150, and in the second, "$500 to us in hand paid by G. W. Dickson and other considerations." In this protest and motion of April 30, 1913, plaintiff assigned as his reason for not filing said protest and motion sooner that:

"He had to go to Roby [the county seat of Fisher county] to procure the certified copy of the deed to show that the property sought to be apportioned to him was in fact his property."

May 3, 1913, the last day of the spring term, the court entered the following order:

"On this day came on to be heard the plaintiff's amended motion for new trial and amended objections to the confirmation of the report of the commissioners of partition: and the court, having heard the same and the argument of counsel thereon, is of opinion that the same as a motion for new trial should be in all things overruled and held for naught, but that the same should be sustained as regards the order heretofore entered in this cause, at this term confirming the report of said commissioners, and it is here now adjudged that said order of confirmation be set aside, and the question of whether said report shall be confirmed is here continued until the next term of this court to which ruling of the court overruling the motion for new trial plaintiff excepted in open court, and to that ruling of the court setting aside the order of confirmation, the defendant in open court excepted."

On November 28, 1913, the court continued the hearing by order reading as follows:

"On this day the above styled cause, pending on the question of confirming report of commissioners in partition, was continued, at the cost and as on the application of the plaintiff, until next term of this court."

March 21, 1914, defendant filed her "supplemental answer," in which it was urged that the question of title to the 30 acres of said tract sought to be raised by said pleading was res judicata, that question having been determined by the final judgment rendered April 2, 1913, and that one term had intervened since the rendition of said judgment. Defendant pleaded that if plaintiff had any title to any part of the land involved in the partition, it was obtained by way of an advancement, and that such title as he might have had was waived, and that said 30 acres was put into hotchpotch by the plaintiff by his failure to assert such rights as he claimed at and before the trial, resulting in the judgment of April 2, 1913. The court overruled defendant's general demurrer and special exceptions, by order of March 23,. 1914, and upon trial upon the one issue as to the title to the 30 acres gave a peremptory instruction to the jury to find for plaintiff. No statement of facts appears in the record. By its judgment of March 28, 1914, based upon the verdict of March 23d, the court decreed that the title to said 30 acres was in plaintiff prior to said judgment of April 2, 1913, and said 30 acres was not subject to partition. Under this last-named judgment, commissioners were appointed to partition, the remainder of the property. Their report, made in accordance with the terms of said judgment, was confirmed, and defendant's motion for new trial overruled. Defendant appeals.

The only question presented for our consideration is as to the finality of the judgment of April 2, 1913. If it was a final judgment, then this cause should be reversed; if it was not a final judgment, the judgment of the trial court of March 28, 1914, should be affirmed. It is true judgments may be modified, amended, reformed, or even, in effect, set aside after the term of their rendition, if good cause be shown and a separate suit be brought for the relief sought, which is in the nature of a bill of review. Johnson v. Templeton, 60 Tex. 238; Overton v. Leon Blum, 50 Tex. 417; Merrill v. Roberts, 78 Tex. 28, 14 S.W. 254; article 2019, Vernon's Sayles' Tex.Civ.Stat. 1914, vol. 2, cases cited on page 1638 thereof. There is no statutory authority for granting a new trial after term time, and such relief can only be granted in the exercise of the equity powers of the court, upon a satisfactory showing that the party complaining of the judgment rendered has been injured, and that such judgment was rendered against him by fraud, accident, or mistake, or the act of the opposite party, unmixed with any fault or negligence on his part. Merrill v. Roberts, supra; Robbie v. Upson, 153 S.W. 406. By the judgment of April 2, 1913, the rights of title of the contestants to a one-half undivided interest in the lands described were definitely adjudicated. Nothing remained to be done to determine these rights, and they were permanently fixed, irrespective of whether or not the ancillary proceeding of partition should be had or not. Therefore we think this was a final judgment as to the rights of the parties. White v. Mitchell, 60 Tex. 164.

"A final judgment is such a judgment as at once puts an end to the action by declaring that the plaintiff has or has not entitled himself to recover the remedy for which he sues." Black on Judgments, vol. 1-26.

"A judgment against a receiver which disposes of all the parties and issues involved, and provides for its execution, is a `final judgment,' which cannot be vacated at a subsequent term by motion or plea in intervention, though the suit in which it is rendered is retained upon the docket for the purpose of carrying the judgment into effect and winding up the receivership." Words and Phrases, vol. 2, 540, citing Malone v. Johnson, 45 Tex. Civ. App. 604.

Even if the trial court had not acted upon the motion for new trial during the term in which the judgment was rendered, it was by operation of law overruled by the expiration of said term. The court cannot postpone action upon such motion beyond the term of the judgment. McKean v. Ziller, 9 Tex. 57; Clements v. Buckner, 35 Tex. Civ. App. 497,80 S.W. 235.

Since the judgment of April 2, 1913, was final, and since plaintiff in the court below did not avail himself of the equitable remedy of a motion for rehearing in the nature of a bill of review after term time, to which, under proper circumstances, he might have shown himself entitled, though we are not passing upon the question as to whether or not in this case, and upon the record before us, he could have shown himself entitled to that equitable relief, we hold that the trial court erred in undertaking to hear this cause at a subsequent term, and in rendering a judgment in conflict with the prior judgment rendered. Hence we hold that the court erred in overruling defendant's plea of res judicata, and the Judgment of March 28, 1914, is reversed, and this cause remanded, with instructions to the trial court to enforce its judgment of April 2, 1913, in accordance with the terms thereof, and in accordance with the judgment of this court herein rendered.

Reversed and remanded, with instructions.

On Motion for Rehearing. The defendant in error in this motion for rehearing calls our attention to an inaccuracy, in our original opinion in stating the date of the deed from J. F. Dickson and wife to his father, G. W. Dickson, reconveying the 50 acres. The date should be August 30, 1906, instead of June 8, 1898, the latter date being the date of the acknowledgment to the deed from G. W. Dickson to J. F. Dickson. We consider this date immaterial, so far as the issues involved were concerned, and make the correction in the interests of abstract accuracy, and to relieve the mind of counsel for defendant in error. To the same end it may be said that the property subject to be partitioned was the separate property of the deceased mother of the plaintiff and defendant, and the records fail to disclose whether at the time of the trial the father was living or dead, and that the cause reached this court by writ of error, and not by direct appeal.

The motion for rehearing is overruled.