235 S.W. 567 | Tex. Comm'n App. | 1921
This suit was brought in the district court of Grimes county by Bookman and Craig against one Thaman to recover upon three promissory notes, and to foreclose a vendor’s lien securing them upon 1,125 acres of land in Galveston county. Thaman filed a formal answer, but did not otherwise appear, and judgment was entered against him upon trial for the amount of the notes, and foreclosing the vendor’s lien. This judgment, however, was set aside by the district court upon the application of the plaintiff upon the ground that other parties were interested in the land, and their rights and equities should he adjudicated. An amended petition was filed bringing in as defendants a large number of persons, and among them the defendants Wyss and others, who filed a joint answer and later appealed from the district court’s judgment, and who are the plaintiffs 'in error in the Supreme Court. The answer of the defendants Wyss and others is very lengthy, and sets up numerous defenses to plaintiffs’ action, not necessary to set forth here in detail. It may be stated generally that this answer claimed that Thaman was in fact an agent of the plaintiff in the sale of the land; that he platted it and had the plat placed of record, and had sold a large number of lots or blocks to various parties, and had paid over the proceeds to the plaintiffs; that the defendants were among the purchasers, and were entitled to have released the vendor’s lien sought to be foreclosed. It was further claimed that, in a sale of property under foreclosure of the vendor’s lien, the portions of the property which had not been sold by Thaman should be ordered sold first, and the other lots or blocks ordered sold in the inverse order of their alienation by Tha-man.
At the May term, 1917, of the district court, which expired on July 28, 1917, judgment was rendered in favor of plaintiffs, by which they, recovered the amount of the notes agajnst Thaman, and the vendor’s lien was foreclosed as to all defendants. The judgment also provided that certain portions of the property which Thaman had not conveyed be sold first, and that other lots enumerated in the judgment be sold in the inverse order of their alienation as disclosed by .the judgment. This judgment appears from its recitals to have been entered, upon trial on the 14th day of June, 1917. Motion for a new trial was made by defendants Wyss and others, which was overruled, and upon - appeal the judgment was affirmed by the Court of Civil Appeals. 212 S. W. 297.
While in form one upon trial, the bills of exceptions, or, as they are styled in the record, statements of fact, show that, in so far as the defendants Wyss and others were concerned, the judgment can be treated only as one by agreement, and the question for our determination is whether the trial court had the power to render it. There appear in the record three documents, each of which is styled “statement of facts.” The first of these, styled “plaintiffs’ statement of facts,” sets forth the various instruments which were offered in evidence. The second, styled “defendants’ statement of facts,” but referred to in the body as a bill of exception,
“No evidence was introduced as to the parties above referred to who were cited and who appeared by their counsel, but the cause was set down for a hearing on June 14, 1917, the plaintiffs appeared in person, the above-mentioned defendants and all except the defendant Thaman who were cited personally, and all parties who were represented by Maco & Minor Stewart and by Judge Buffington appeared by their attorneys Barret Gibson and O. M. Mil-heiser, of the said firm of Stewarts, and by Judge T. P. Buffington. Counsel for plaintiffs and for said defendants announced that they had about arrived at a settlement of the matters’ in controversy in so far as their clients were concerned, and asked for time in which to perfect the settlement. They were given time, and from time to time reported, until finally the said counsel each and all appeared in open court and announced that they had agreed upon the terms — a judgment — and announced tije terms to the court, and they authorized the court to enter the judgment upon the agreement, and they said they would prepare a decree and submit same to the court for entry upon the minutes of the court.
“A decree was prepared by the plaintiffs’ attorneys and submitted to me, together with letters and telegrams passing between attorneys for plaintiffs and defendants, and a decree submitted by counsel for defendants was shown me by counsel for plaintiffs. I approved the decree submitted by plaintiffs’ counsel as being in accordance with the agreement, which agreement made in open court was that the plaintiffs should have judgment foreclosing their lien as set out in their petition against all of the defendants, the land to be sold in the inverse order in wkicñ same was sold by Thaman to the other defendants. There had previously been entered an interlocutory judgment against the defendant Thaman. The agreement further was that, upon payment of all costs by defendants holding 55 acres of the land, these defendants should have their lands free. There is no motion for new trial by defendant Tha-man, and he does not complain of the judgment against him.
'“Before J approved the judgment finally recorded I satisfied myself that the plaintiffs had executed a release as to the 55 acres of land to be delivered on payment of costs. These were executed, as I am informed, and no question has been raised as to their execution, they being tendered into court on the hearing on the 28th day of July, A. D. 1917, upon the effort to settle differences as to the terms of the judgment. There was only one difference in the two judgments tendered outside of the 55 acres, and that was this, that the judgment rendered by counsel for defendants provided for judgment over against Tha-man, and I told .Gibson I was perfectly willing to enter this if he would file a sufficient pleading and get a waiver from Thaman. He agreed that the judgment would be void unless he did so. This left only one point of difference in the two judgments, and that was the release of the 55 acres of land, which was to be done upon payment of costs as the agreement was made in open court, and as counsel now admits was the agreement. The costs had not been paid, and I had entered the foreclosure, but Judge T. P. Buffington made the agreement to pay the costs, and, as he is amply solvent, and I personally know will carry out his agreements, I, in open court, on July 28, 1917, at said hearing, told counsel for the defendants, that I would enter an order or judgment correcting the original judgment as to the 55 acres of land, and Mr. Gibson went off to prepare this judgment, but, instead of preparing it, prepared and filed the motion for new trial. I would gladly have corrected the only feature of the*569 judgment claimed by said counsel to be erroneous, and did offer to do so, and my offer was not accepted.”
As we view the case, two questions are presented: First, whether there was any agreement in contemplation of law under which the judge was authorized to enter judgment; and, if so, second, whether the judgment entered conformed to such agreement.
District court rule No. 47 (142 S. W. xxi) provides:
“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing signed and filed with the papers as a part of the record, or unless it be made in open court and entered of record.”
It seems, therefore, clear to us that the negotiations of the parties as entered of record never reached that final stage of meeting of minds upon all matters which is essentially necessary to an agreed judgment.
We conclude that the judgments of the district court ,and Court of Civil Appeals should be reversed, and the cause remanded to the former for further trial.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
We approve the holding of the Commission of Appeals on the question discussed in its opinion.
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