68 S.W. 1015 | Tex. App. | 1902
J.S. Collins and others sued J.F. Dick, January 16, 1900, in trespass to try title to recover 480 acres of land, a part of the William G. Malone survey of 1920 acres, and the usual damages in such actions. The case was tried May 18, 1901, which was Saturday, resulting in a judgment in their favor late that afternoon, and on Tuesday following, May 21, about 2 p.m., the court adjourned. This suit was instituted by J.F. Dick September 3, 1901, *13 against the plaintiffs in the original suit to set aside the judgment rendered therein and retry the issue. The court sustained a general demurrer and what were termed special exceptions to the petition, dismissing the suit, and from that judgment this appeal was taken.
The case made by the petition, if presented in a motion for new trial during the term at which the original judgment was rendered, would have entitled appellant to relief; for it appears not only that appellees (or most of them) were barred by the five years statute of limitation when the original suit was filed, which was the defense relied on, but also that this was shown on the trial of that case by the testimony of appellant and one other witness, while the three witnesses who testified to the contrary, and upon whose testimony alone judgment went against appellant, undoubtedly made a mistake of one year against appellant in fixing the time when he took possession of the land through his tenant, thus reducing the period of adverse possession to four instead of five years. This fatal mistake was freely admitted when this suit was brought, by each of the witnesses, and explained in the affidavit of one of them, the allegations of the petition leaving no room for doubt on this subject. But if we treat this as an accident, the question yet remains, was it an unavoidable one; that is, was it unmixed with fault or negligence on the part of appellant so as to bring the case within the strict rule on that subject announced in Bronson v. McReynolds,
The judgment must therefore be affirmed.
Affirmed.
Writ of error refused.