Keener v. Moss

Willie, Chief Justice The decree rendered in this cause recites that it appeared from the pleadings and evidence that the property sought to be partitioned was not susceptible of division amongst those entitled to distributive interests therein, and for that reason the court ordered a sale of the property, and a distribution of the proceeds of sale among the several part owners thereof. There was no appoint-of commissioners to make partition of the property as required by statute. R. S., art. 3469. This proceeding is statutory, and the judgment for a sale of the land sought to be partitioned is authorized only in the event that the commissioners report to the court that a fair and equitable division of the real estate to be divided, or some part thereof, cannot be made. R. S., art. 3479. The statute guarantees to each party interested in the proceeding, the right to file objections to this report of the commissioners, and to have the issue as to its correctnesss tried as in other cases. R. S., art. 3480. Of this right the appellant was deprived in this case, as no report was made. It is no answer to this to say that he could have made his objections to a sale of the land for partition upon trial of the cause. [184] That is not the time at which the statute said he must make them, and he was entitled to all the indulgence, in this respect, allowed by the statute. The statute not intending that these objections should be made before the commissioners’ report was returned into court, and as this could not be done until a decree fixing 'the rights of the parties had been entered, he was not bound to appear before the entry of the decree, if he had no objection to the interest of the parties being fixed in accordance with the prayers of his adversaries. He might have been willing that the plaintiff and his co-defendants should recover the amounts of land claimed by them, and yet not willing that the whole lot should be sold for partition. If so, the proper time for him to object to an order of sale was when it should be recommended in the report of the commissioners. Admitting that the answer of L. M. and G. C. Eeed notified him that they would ask judgment for a sale of the land for the purposes of partition, which we do not decide, it did not give him notice that this judgment would be asked out of due order, and without a compliance with the requirements of the statute; on the contrary, that answer must be taken as averring a fact which would be found to be true by the report of commissioners, and as asking judgment accordingly. This being consistent with the allegations and prayer of the answer, the appellant was not bound to presume that something not authorized by statute would be sought upon the trial, had for the purpose of establishing the respective interests of the parties in the land. But, in any event, it is clear that the necessary steps to obtain a sale of the land, for the purpose of partition, have not been taken, and for this reason the judgment below is erroneous and must be reversed. Tieman v. Baker, 63 Tex., 641. As the cause will be remanded, it is proper to say that judgment was erroneously rendered against the appellant for rents to accrue after the j udgment and down to its final execution. It needs no citation of authorities to show that a judgment cannot be rendered in advance for a debt not yet existing, and which may never accrue, or which, upon the happening of a contingency, may be for a different amount from that for which it is rendered. neither should the court render judgment against the appellant for the costs accruing down to the entry of the decree fixing the interests of the parties in the land, unless it appears, by allegation and proof, that he is contesting the rights of the plaintiffs and other defendants in this suit. There is no allegation to that effect in any of the pleadings found in the record. Johns v. Northcutt, 49 Tex., 444. In view of the manner in which the case is disposed of, it becomes [185] unnecessary to consider the question as to the validity of the process served upon the appellant. Had he appeared, and upon his motion the citation been quashed, the only result would have been that the cause would have been continued to the next term of the court, and he would have been treated as appearing at that term. R. S., art. 1243. This cause cannot, in any event, be called for trial until a term of the district court succeeding the one at which the motion to quash was filed by the appellant. He will then be properly and legally in court, and the cause can proceed as if no objection had ever been made to the process. Railway Company v. Brett, 61 Tex., 483. The judgment is reversed and the cause remanded. Eeversed and Eemanded. [Opinion delivered May 4, 1886.]