284 S.W. 258 | Tex. App. | 1926
J. T. Jackson and Bellew filed separate motions for new trial. Intervener W. W. Ballew asked for a new trial on the grounds that the court erred in instructing a verdict for the heirs of J. C. Wallace for all of lot 19, and in refusing to instruct in his favor for a one-third interest in said lot, and that the court erred in instructing against him as to one-third of the rents on all of said land from 1911 to 1918. The court overruled in one order both motions for new trial, and both jointly gave notice of appeal. J. T. Jackson and intervener Ballew jointly executed one appeal bond. In the Court of Civil Appeals the case was reversed and remanded. Jackson et al. v. Wallace et al.,
The case was again tried, the judgment then rendered reciting:
"And the interveners, Gibson Calloway and W. W. Ballew, in open court, having declined to further prosecute their suit, the intervention heretofore allowed said parties is eliminated from this cause, and the cause is tried upon the several issues in controversy between the plaintiffs and the defendants. * * * This judgment shall in no wise affect any right or interest held or acquired by the intervener under the former judgment."
In the judgment rendered on this second trial of said cause, No. 8041, Wallace v. Jackson, the Wallace heirs recovered against J. T. Jackson all of the land in controversy. This judgment was affirmed by the Court of Civil Appeals, Jackson v. Wallace et al.,
Now follows a brief statement of the suit at bar: W. W. Ballew in the meantime had acquired possession of the land he claimed under the first judgment rendered in cause No. 8041, and was occupying same through tenants, Dockery and Chapman. On February 17, 1921, the Wallace heirs, appellants in this case, brought suit against Dockery and Chapman in trespass to try title for all the land that was in controversy in the former suit of Wallace v. Jackson. Defendants Dockery and Chapman disclaimed and were dropped from the case. At this stage W. W. Ballew intervened in this cause and claimed to own an undivided one-third interest in all said land except lot 19, and based his right to said land upon the judgment had in the case of Wallace Heirs v. J. T. Jackson, No. 8041, tried in 1919, claiming the appeal from said judgment and the reversal of same did not affect his recovery in the trial court. *260
Plaintiffs answered his intervention, alleging that he had appealed from the same judgment that he was now claiming under; that upon this appeal and at his instance said judgment was set aside by the appellate court and remanded for another trial; that the legal effect of said reversal was to render his judgment null and of no force or effect. This case was tried before the court and resulted in a judgment in favor of the Wallace heirs for the entire interest in said land against intervener Ballew. An appeal was taken, and the Court of Civil Appeals reversed and remanded the case, Dockery et al. v. Wallace et al.,
When cause No. 8041, Wallace v. Jackson, Ballew Intervener, come on for the second trial, said intervener announced he would no longer prosecute his intervention and would withdraw from the case and rely upon the former judgment in said cause to establish his rights, and said intervener did so withdraw his plea of intervention, which was equivalent to a nonsuit on his part, and his present contention is that notwithstanding he and J. T. Jackson appealed from the first judgment, and notwithstanding the Court of Civil Appeals at Dallas reversed and remanded said cause generally because certain facts essential to a recovery by both the Wallace heirs and Ballew were not sufficiently shown, yet Ballew in this present appeal based his right to recover one-third of the land in controversy solely upon said first judgment. So if intervener has any rights in the land in controversy and any right to recover in this present suit, it must be based on the first judgment, which, to have such effect, would have to be considered as remaining in full force and effect as to his rights, and as stated above, in effect, the only question involved in this appeal is: Was the reversal in cause No. 8041 on the first appeal a reversal of the entire case, or was it a reversal of the case only as between the Wallace heirs and J. T. Jackson? If the latter, then this cause should be affirmed; if the former, then this cause should be reversed and rendered for appellants. Appellee relies upon an opinion by the honorable Court of Civil Appeals at Beaumont on a former appeal of this case, reported in
The case was fully developed on the last trial. The right of appellants to recover the entire title to all the land in controversy was fully established, unless appellee Ballew was entitled to one-third by virtue of the judgment rendered in cause No. 8041 on the first trial of said cause; and it clearly appearing, we think, that said entire judgment was reversed by the honorable Court of Civil Appeals at Dallas, and said entire cause remanded, appellee has no right of recovery by virtue of said judgment. Appellee Ballew having failed to show any right of recovery to any part of the land in controversy, said cause is reversed and here rendered for appellants.