Blank v. Robertson

Court of Appeals of Texas

Blank v. Robertson

78 S.W. 564, 34 Tex. Civ. App. 387, 1904 Tex. App. LEXIS 567

CourtCourt of Appeals of Texas

DecidedJanuary 30, 1904

StatusPublished

Cited by3 cases

This text of 78 S.W. 564 (Blank v. Robertson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Blank v. Robertson, 78 S.W. 564, 34 Tex. Civ. App. 387, 1904 Tex. App. LEXIS 567 (Tex. Ct. App. 1904).

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Opinion

SPEER, Associate Justice.

Appellee, John E. Robertson, filed this suit in the District Court of Stonewall County, Texas, in trespass to try title against S. A. Blank, the appellant, for the recovery of four sections of public school land in said county. The appellant answered by general denial, a plea of not guilty, and further, by way of reconvention, he sought to recover both actual and exemplary damages for the wrongful issuance and service of a writ of sequestration in the case. When the case came on for trial the plaintiff applied to the court for leave to take a nonsuit, which was granted, and on the same day and later in the day, as he contends, interposed a general demurrer to the defendant’s plea in reconvention, which was by the court sustained. Afterwards, the appellant asked leave of the court to amend his said plea in reconvention, which permission being denied, the action was thereupon dismissed.

We deem it unnecessary to discuss the question of the sufficiency of the plea in reconvention as against a general demurrer, inasmuch as we are clearly of the opinion that appellant should have been permitted to amend such plea upon the court’s sustaining appellee’s general demurrer. Appellee relies upon the case of Hoodless v. Winter, 80 Texas, 638, but clearly that case asserts no such doctrine as contended for by appellee here. In that case it was held error to refuse the plaintiff permission to dismiss the entire cause of action, for the reason that the defendants had interposed no pleading asking for affirmative relief of any character whatever. Everything set out in their special answer could have been proven under their general denial. The language of that decision indicates the true rule, which is, that where a defendant has by his pleadings sought some affirmative relief, the right of the plaintiff to discontinue the entire cause is forbidden. Rev. Stats., arts. 1260, 1301; French v. Groesbeck, 8 Texas Civ. App., 19, 27 S. W. Rep., 43 (writ *388 refused); Akard v. Western M. & I. Co., 34 S. W. Rep., 139; Short v. Hepburn, 89 Texas, 622.

Tor the error of the District Court in not allowing appellant to amend his pleading, and in dismissing the entire cause, the judgment is reversed and the cause remanded.

Reversed and remanded.

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SPEER, Associate Justice.

Appellee, John E. Robertson, filed this suit in the District Court of Stonewall County, Texas, in trespass to try title against S. A. Blank, the appellant, for the recovery of four sections of public school land in said county. The appellant answered by general denial, a plea of not guilty, and further, by way of reconvention, he sought to recover both actual and exemplary damages for the wrongful issuance and service of a writ of sequestration in the case. When the case came on for trial the plaintiff applied to the court for leave to take a nonsuit, which was granted, and on the same day and later in the day, as he contends, interposed a general demurrer to the defendant’s plea in reconvention, which was by the court sustained. Afterwards, the appellant asked leave of the court to amend his said plea in reconvention, which permission being denied, the action was thereupon dismissed.

We deem it unnecessary to discuss the question of the sufficiency of the plea in reconvention as against a general demurrer, inasmuch as we are clearly of the opinion that appellant should have been permitted to amend such plea upon the court’s sustaining appellee’s general demurrer. Appellee relies upon the case of Hoodless v. Winter, 80 Texas, 638, but clearly that case asserts no such doctrine as contended for by appellee here. In that case it was held error to refuse the plaintiff permission to dismiss the entire cause of action, for the reason that the defendants had interposed no pleading asking for affirmative relief of any character whatever. Everything set out in their special answer could have been proven under their general denial. The language of that decision indicates the true rule, which is, that where a defendant has by his pleadings sought some affirmative relief, the right of the plaintiff to discontinue the entire cause is forbidden. Rev. Stats., arts. 1260, 1301; French v. Groesbeck, 8 Texas Civ. App., 19, 27 S. W. Rep., 43 (writ *388 refused); Akard v. Western M. & I. Co., 34 S. W. Rep., 139; Short v. Hepburn, 89 Texas, 622.

Tor the error of the District Court in not allowing appellant to amend his pleading, and in dismissing the entire cause, the judgment is reversed and the cause remanded.

Reversed and remanded.

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78 S.W. 564, 34 Tex. Civ. App. 387, 1904 Tex. App. LEXIS 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blank-v-robertson-texapp-1904.

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