Ivey v. Harrell

WILLIAMS, Associate Justice. Action of trespass to try title by appellant against appellees, to recover a tract of 540 acres of land, part of the Daniel Reel league. Appellees pleaded various defenses, but one of which need be stated. That was a plea setting up as a bar to this action a former judgment of the District Court of' Rusk County. Appellant in reply to this plea asserted that the judgment was void, for the reasons hereinafter considered. The parties to that judgment were not made parties to this suit, and there was no prayer for reviewing or setting it aside. The case was tried by the court without a jury, and a judgment rendered for the appellees, on the ground that the former judgment precluded appellant from recovering. There is no statement of facts, but the findings of law and fact of the district judge are in the record, and the question for determination here *229 is, whether or not the conclusion of law that such former judgment was not void, but bound plaintiff, was correct. In order to reverse that ruling, it must affirmatively appear to be wrong-from the facts found, for we are without any other means of reviewing it. The material facts thus found are: That plaintiff, prior to that judgment, had title to an undivided interest in the land sued for; that in 1875, there was pending in the District Court of Rusk County a suit in which Berry and others were plaintiffs and Ilarnage and others defendants, which involved what is called the west quarter of the Reel league. In that suit, in 1875, two separate pleas of intervention were filed, one by the Flanagans and one by the Iveys. Among the latter were the appellant and his brothers, who were joint owners with him. Appellant at that time was a minor, but several of his brothers who intervened with him were adults, and had employed attorneys to represent them in the intervention. The minutes of the court recite that the intervenors appeared, and that S. R. Whitley was appointed guardian ad litem for plaintiff, and that lie qualified by giving the bond fixed by the court and taking oath as required by law. It appears by the two interventions that the north quarter of the Reel league, of which the land in controversy is a part, was introduced into the-litigation in that suit. A trial was had at the August Term, 1875, at. which all the parties, plaintiffs, defendants, and intervenors, including plaintiff represented by his guardian ad litem, appeared. A verdict was. rendered as to the matters in issue between the plaintiffs and defendants, and a judgment was rendered thereon settling the title to the west quarter of the league. An agreement was then presented to the court between the intervenors, settling their controversies as to the north quarter, and a judgment was entered in accordance therewith for partition of that pait of the league among the several claimants. Appellee was represented in this agreement and judgment by his guardian ad litem. After the judgment was rendered an execution for costs issued against the Iveys, and was levied on all their interest in the Reel league. At the sale, N. G-. Bagley, who was their attorney in that suit, bought in the land for $10. It was worth $500 or $600. It does not appear that any of the defendants are claiming under that sale, Bagley’s representatives not being made parties. It is claimed by appellant that the judgment was void because he was not legally a party to the suit. The law then in force provided for the appointment of a special guardian to take care of the interests of a minor in a suit pending or about to be commenced, to which such minor was a proper party, such appointment to be made by the court in which the suit was pending or about to be commenced. Pasch. Dig., arts. 6969, 6970. Before that statute was passed, and since its repeal, minors could sue by next friend, and there is nothing in those provisions which would *230 prevent a suit or an intervention being brought before the court in that manner. The brothers of appellant brought him into court by the plea of intervention, and in the absence of the record showing to the contrary it would be presumed, if necessary to support the action of the court, that in so doing they acted in the capacity of next friend. The fact that the proceeding was an intervention could not affect the question, for intervenors may occupy the position of either plaintiffs or defendants, and all the elements of a cause of action or ground of defense may be contained in such pleading. Parties may come into court by that method as effectually as by original suit. When they were introduced into the suit it was proper for the court to appoint guardians for them. Bond v. Dillard, 50 Texas, 309. We must conclude therefore that the plaintiff was before the court in the case of Berry v. Harnage in such a manner as to give that court jurisdiction over his person. Martin v. Weyman, 26 Texas, 468. The fact that the judgment was rendered on the agreement of the guardian does not render it void. The guardian acted under the supervision of the court, and, in a collateral proceeding, it must be presumed that the court ascertained the facts upon which the agreement was based and al lowed no wrong done to the minor. It might be erroneous for a court to base its judgment upon an agreement of the guardian, but this would not render its action void. It is the judgment which binds, and not the agreement. Ilollis v. Dasliiell, 52 Texas, 187. If, by the interventions in the ease of Berry v. Harnage, other land was improperly introduced as the subject of the. controversy, the action of the court in allowing it might be irregular, but its jurisdiction would not be affected. A state of facts might be supposed" in which it would have been proper to bring all of the land in, in order to adjust controversies and rights which extended through all of it. Whether such a case was made by the pleadings or not, parties were before the court seeking to litigate over a subject of which it had jurisdiction, and its judgment entertaining and determining their suit can not be collaterally attacked. The judgment as between the intervenors is found by the court below to be a part of the final judgment settling the controversy of the plaintiffs and defendants, and there is no merit in appellant’s contention that it is a separate decree. This can not be treated as a direct proceeding to set aside the judgment. The allegations and prayer of the petition show no such object, and none of the parties to that judgment are before the court. The same may be said as to the execution sale to Bagley. His representatives are not made parties, and it is not made to appear that any of the defendants hold under that sale. Neither the pleadings nor the findings of the judge show that *231 the proper parties are before the court to enable us to pass upon the validity of that sale. Delivered November 3, 1892. The court below was right in treating the suit simply as an action of trespass to try title, and not one to review and set aside the judgment and the sale to Bagley, and its judgment should be affirmed. Affirmed.