Summary
holding oral settlement agreement unenforceable because not evidenced as required by predecessor to Rule 11
Summary of this case from Alcantar v. Oklahoma National BankOpinion
No. 3686.
May 17, 1929. Rehearing Denied May 30, 1929.
Appeal from District Court, Hopkins County; Grover Sellers, Judge.
Suit by Amy Gossett and another against G. Y. Foster and others. Judgment for plaintiffs, and the defendant named and another appeal. Affirmed.
This was a suit by appellee Amy Gossett, joined by her husband, Frank Gossett, against appellants T. R. Foster and G. Y. Foster and appellee J. I. Foster, Individually and as administrator of the estate of Mrs. Ola Foster, deceased, to partition 168 acres, less 4 1/2 acres, of the David Attaway survey in Hopkins county and 32 acres of the Manuel Y'Barbo survey in Wood county, together constituting the homestead of said Mrs. Ola Foster at the time of her death, and 118 acres of said Y'Barbo survey in Wood county. The court determined by a judgment rendered at its February, 1928, term that each of the appellants and appellees owned a one-fourth interest, undivided, in the 168-acre and 32-acre tracts, and a one-eighth interest, undivided, in the 118-acre tract, and that they also owned the other one-half of said 118 acres, but subject to the claim thereto of appellee J. I. Foster as administrator of said estate. The court determined further that the parties were not entitled to a partition of the 118-acre tract, but were entitled to a partition of the 168 and 32-acre tracts, and appointed commissioners to make the partition. A partition having been made as directed, a report thereof was duly filed September 19, 1928. Exceptions and objections of appellants to said report were overruled by the court October 5, 1928, when he rendered judgment approving the report and vesting title in each of the appellants and appellees to the part allotted to him or her by the commissioners. This appeal by appellants T. R. Foster and G. Y. Foster is from the judgment last mentioned.
Dial Brim, of Sulphur Springs, for appellants.
Ramey Davidson, of Sulphur Springs, and J. H. Beavers, of Winnsboro, for appellees.
Appellants' contention that the trial court erred when he refused to comply with their demand for a jury to determine issues presented, they say, by their exceptions and objections to the partition made by the commissioners, is overruled. It appears in the record that the judgment determining the parties were entitled to a partition of the 168-acre and 32-acre tracts was rendered at the February, 1928, term of the district court of Hopkins county, and that no application for a jury was made before that judgment was rendered or at any time during that term of the court. The report of the commissioners then appointed to make the partition was filed September 19, 1928, which was during the August, 1928, term of said court. It appears in a bill of exceptions that during said August, 1928, term, to wit, on October 4, 1928, before the jury for the week had been discharged, appellants demanded that said issues be tried by a jury, and deposited the statutory (article 2124, R.S. 1925) jury fee with the clerk of said court. The demand was refused; and on the next day, to wit, October 5, 1928, the hearing resulting in the judgment here complained of was had to the court without a jury. The statute (article 2125, R.S. 1925; and see section 10 of article 5 of the Constitution) invoked by appellants required them, if they desired the suit to be tried by a jury, to "make (quoting) application therefor in open court on the first day of the term at which the suit is to be tried, unless the same be appearance day, in which event the application shall be made on default day." As we have seen, it appears appellants did not do that, unless the proceedings after the filing of the commissioners' report should be treated, not as a part of the cause tried at the February, 1928, term, as we think they should be, but as proceedings in another and different suit, which they clearly were not. Treating those proceedings as a continuation of a trial commenced at said February, 1928, term, we think it must be held that appellants are in the attitude of having waived a trial by a jury of any of the issues in the suit. The holding in Blair v. Paggi (Tex.Com.App.) 238 S.W. 639, cited by appellants as supporting their contention that they were entitled to a jury trial on issues made by their exceptions notwithstanding the hearing thereon was a continuance of the trial commenced at the February term without demand for a jury, evidently was on the theory that the agreement of the parties to that cause that the trial at the term to which the same was passed should "begin where left off," was without effect, and hence that the trial should be treated as commenced at the term to which the postponement was had.
The contention that the trial court erred when he overruled appellants' objections and exceptions to the commissioners' report is plainly without merit we think. The burden of supporting their attack on the report was on appellants, and they adduced no evidence whatever in support of it. And as plainly without merit we think is the contention that the court erred "in sustaining (quoting) the plaintiffs' exceptions and objections to the defendants' compromise offer" as shown "in defendants' bill of exceptions No. 4." There is no such bill of exceptions in the record sent to this court. It appears from a pleading styled in the record "supplemental exceptions and objections of the defendants G. Y. Foster and T. R. Foster," that the compromise offer referred to was made by attorneys representing parties to the suit and accepted by attorneys representing other parties thereto, and that same was not enforceable because not evidenced as required by Rule 47 for the government of district and county courts.
The assignments of error (numbered 1 and 2) that the judgment "is contrary to the evidence" and "contrary to the law" are not entitled to consideration because too general. See Rules 24, 25, and 26, for the government of Courts of Civil Appeals. The assignment complaining of the action of the trial court in overruling appellants' application for a continuance to obtain the testimony of named witnesses to support appellants' exceptions and objections to the commissioners' report also has not been considered, because the ruling has not been presented here by a bill of exceptions as required by Rules 55 and 70 for the government of district and county courts.
The judgment is affirmed.