McKinzie v. Frey

DUNKLIN, J. Eliza McKinzie instituted this suit against W. H. Frey and others to set aside a certain judgment theretofore rendered by the district court of Erath county and also to set aside a deed to a tract of land situated in that county. The decree of the court sought to be set aside was rendered in a suit instituted by W. D. Bennett as receiver of the estate of Eliza McKinzie against two of the defendants in the present suit to recover the same land described in the deed sought to be canceled, and in that decree the plaintiff was denied a recovery. In the present suit the ground alleged for the cancellation of the deed consisted of fraud which induced its execution. According to allegations in plaintiff’s petition, the county court appointed W. D. Bennett receiver of the estate of the plaintiff on the representation that she was of unsound mind, and thereafter said receiver instituted the suit in which the decree above mentioned was entered. The receivership proceedings and the decree of the court entered in the suit instituted by him were all attacked as being void for several reasons which it will be unnecessary to enumerate. Upon a trial of the present suit judgment was rendered denying the plaintiff any of the relief prayed for, and she has appealed. Judgment was rendered upon evidence which was introduced by the. defendants, no evidence being introduced by the plaintiff; and all the assignments presented are addressed to the action of the court in overruling plaintiff’s original and supplemental motions for continuance. Substantially the same motions were presented in the companion case to the present suit entitled Eliza McKinzie v. J. L. Sutton et al., 235 S. W. 674, from which likewise an appeal was prosecuted by the plaintiff and substantially the same assignments presented by the same appellant have this day been overruled, as shown in the opinion rendered by Chief Justice Conner. The assignments in the present suit will be overruled for the reasons noted in that opinion without further discussion. Accordingly the judgment of the trial court is affirmed.