65 Tex. 61 | Tex. | 1885
The record discloses substantially the following state of case, so far as the appellant Watson is concerned.
The appellee sued him in connection with eight other defenda nts in an action of trespass to try title, to recover an undivided 1200 acres, out of a tract of 2000, and to have a partition made between the plaintiff and the defendants according to their respective interests in the land. On the 9th of January, 1882, a judgment by default was taken against Watson and one of his co-defendants, Cull Carr, and it was adjudged that the appellee recover of them twelve-twentieths of the land described in his petition, and that the commissioners thereafter to be appointed, partition the land between plaintiff and said defendants, in that proportion, and that the cause be continued as to the other defendants. On the 16th of January, 1882, Cull Carr and wife filed a motion to set aside this judgment by default; and on the 23d of December, 1882, Cull Carr and Watson filed a bill of review, praying that the judgment might be set aside, and they permitted
At the July term, 1885, of the District Court of Busk county, the case went to trial between the plaintiff and all the defendants, including Carr and Watson. The plaintiff having introduced evidence to sustain his side of the cause, Carr and Watson, together with the other defendants, produced testimony to defeat the plaintiff’s action as to them. The court rendered judgment in favor of all the defendants except Watson; and as to him, it recited that at a former term of the court a judgment by default had been rendered for his interest in the land sued for. It then stated that it further appearing to the court that Watson’s interest in the land was one hundred acres, setting it forth by metes and bounds, it was considered that the plaintiff recover of him the 100 acres thus described, and all costs, and have his writ of possession.
It seems from the record that the land recovered of Watson was in the east half of the Stephen C. George league; and the court, in its conclusions of law and fact, found that the plaintiff had no title to that half of the league. The court further found, however, that judgment by default having been taken as to Watson at a former term of the court, and no legal cause having been shown to set aside the default, the plaintiff should recover as to him.
Watson moved to set aside this judgment and for a new trial, which motion having been overruled, this appeal was taken and is prosecuted.
The counsel for Watson signs the statement of facts in company with the attorneys for the other parties interested in the suit.
It is apparent from this statement of the case, that whilst no formal order appears to have been entered, setting aside the judgment by default either as to Carr or Watson, they were each allowed to plead to the action. Hot only so, but they were also allowed to introduce testimony to defeat the plaintiff’s recovery. They were as much before the court upon the hearing of the cause as any of the other defendants; as much, in fact, as if the court had formally set aside the default, and allowed them to plead and introduce evidence. The court did, in fact, give them special permission to plead; for their amended answers state that they were filed by leave of the court, and upon these answers, containing this statement, they were allowed to go to trial, and to introduce evidence to sustain their pleadings. A defendant against whom a judgment by default stands, has no right to
Hot only so, but it rendered judgment against him for 100 acres of land, describing it by metes and bounds, when there was nothing in the record which authorized a recovery of that specific tract from Watson. Watson’s claim was not described in the petition ; it was not designated as to quantity, or field notes, either in his answer or the statement of facts. He purports to make an exhibit of his deed as a part of his answer, and the record shows that it was received in evidence, but it is nowhere set out, or any statement of it given by which it can be told what amount or description of land was claimed by him. The court therefore clearly erred in granting a recovery as to any specified tract of land against him.
And we think, taking the entire record into consideration, that the court should not have rendered any final judgment whatever against Watson. The final judgment rendered can only be supported upon the theory that the interlocutory judgment was in force at the time of its entry. The existence of the interlocutory judgment was incon
Reversed and Remanded.
[Opinion delivered November 27, 1885.]