190 S.W.2d 510 | Tex. App. | 1945
This was a vacancy suit brought by F. L. Luckel under the provisions of Article 5421c, Vernon's Annotated Civil Statutes.
F. L. Luckel filed on two alleged vacancies located in Montgomery County, Texas. The Commissioner of the General Land Office rejected his application for vacancies and he brought two suits in Montgomery County, as authorized by subsection j, Section 6 of Article 5421c. The two suits we consolidated and set for trial together. Upon the date set for trial, plaintiff appeared without benefit of counsel or any expert witnesses to testify relative to the alleged vacancies. The State of Texas having intervened under the provisions of subsection j, Section 6 of Article 5421c, moved to dismiss the consolidated cases, including all cross actions that had been filed against the State of Texas and the plaintiff. The court heard testimony on the State's motion to dismiss and the plaintiff, F. L. *511 Luckel, testified that he did not have counsel to assist him in presenting his claims to the court and that he did not have an engineer, surveyor or other witnesses of any kind that would testify in support of his claims, and that he had no evidence except the record evidence that every one has. The State's motion to dismiss the cause, including the cross-action of the defendants, was overruled by the court, to which the State of Texas excepted and the cause proceeded to trial, whereupon the plaintiff, F. L. Luckel, introduced in evidence the following instruments: (1) Original Petition; (2) application to survey, filed with the County Surveyor on August 7, 1941, together with proof showing that the $5 surveying fee was paid, and within ten days thereafter the application was filed in the General Land Office, and that the $100 filing fee to the General Land Office was paid; (3) Commissioner of the General Land Office appointment of W. B. Chambers, Surveyor; (4) Commissioner's notice to start the survey; (5) extension of time within which to complete the survey; (6) surveyor's field notes; (7) surveyor's report; (8) rejection on November 10, 1942, of the application; (9) the original petition in No. 18,824; (10) the application filed February 10, 1941, in the County Surveyor's Office, together with $5 filing fee paid, and within ten days thereafter application was filed in the General Land Office, together with $100 filing fee; (11) Commissioner's appointment of W. B. Chambers, Surveyor; (12) Commissioner's Notice to start the survey; (13) extension of time to complete the survey; (14) surveyor's field notes; (15) surveyor's report.
After introducing the foregoing instruments, the plaintiff rested his case, whereupon the State of Texas renewed its motion to dismiss the consolidated cases, including all cross actions. This motion was overruled, to which the State excepted, whereupon the various defendants then proceeded to prove up their case on their answers and cross-actions and, as reflected by the findings of fact by the trial court, fully developed their defenses and their case under their cross-actions.
The court entered judgment for the defendants, granting all the relief sought, and the State gave notice of appeal to this court. The record on appeal was prepared under Rule 377(a) and the State brings forth one point of error as follows: "The court erred in overruling the State's motion to dismiss." Under this point, the State contends that under a proper construction of subsection j, Section 6 of Article 5421c, it gave the State the right, under the facts of this case, to have the plaintiff's suit and defendants' cross-action dismissed, its contentions being that this litigation has not been prosecuted to a final judgment binding upon the State as contemplated by the Statute, and that the district court should have sustained the State's motion to dismiss and call our attention to the last two sentences in said subsection j as supporting their contention.
Appellant raises no question as to the sufficiency of the evidence to sustain the judgment of the court nor its findings of fact and conclusions of law. The suits which were thereafter consolidated were filed January 14, 1943. The case was first set for trial for September 11, 1944, but in order definitely to determine if the trial would take place on that date the court on August 21, 1944, heard the motion for continuance. Both the plaintiff and the State filed motions for a continuance and the motions were sustained. In the State's motion it promised to be ready to try the case at the next term of court. When the case was called for trial at the succeeding term, to-wit, February 5, 1945, the State made no motion for continuance or postponement, electing to rely on its motion to have the entire case dismissed as above set out. The State makes no contention that there was any fraud practiced upon the State and makes no suggestion that there was any evidence in existence which would tend to support the plaintiff's contention that the alleged vacancies in fact existed. It makes no claim that the acts and conduct of the plaintiff or of the defendants prevented or hindered the State or the Attorney General from presenting their case. The State insists that the legislative history of the several Acts relating to granting vacancy applicants the right to litigate vacancies in connection with the statute as it now exists reflects a clear intention on the part of the Legislature to place the burden of proving the existence of vacancies upon the vacancy claimant, and that no duty rests upon the Attorney General or the State to produce and make proof in support of the State's rights in the litigation. *512
When the State authorizes a party to sue the State and becomes a party to that litigation, it occupies the same position as any other litigant. This rule seems well established in the jurisprudence of this state. State v. Cloudt, Tex. Civ. App.
Being of the opinion that this suit was prosecuted to final judgment as contemplated by subsection j, Section 6 of Article 5421c, and that there was no error in the action of the trial court in overruling the State's motion to dismiss plaintiff's cause, including the cross action of the defendants, this case is affirmed. *513