Boyd v. Kimbell

• Decision Date: 01 March 1899
• Citation: 50 S.W. 634
• Parties: BOYD v. KIMBELL.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W. 634

BOYD v. KIMBELL.¹

Court of Civil Appeals of Texas.

March 1, 1899.

Appeal from district court, Leon county; J. M. Smither, Judge.

Action by W. R. Boyd, as guardian of the estate of the minor heirs of J. M. Hammett, deceased, against B. B. Kimbell, as independent executor of the estate of said decedent. From an order overruling a motion to set aside a judgment of nonsuit, plaintiff appeals. Affirmed.

This suit was instituted in the district court by W. R. Boyd, as guardian of the estate of the minor heirs of J. M. Hammett, deceased against B. B. Kimbell, as independent executor of the estate of said decedent, for the purpose of having set aside to appellant, for the use of said minors, 180 acres of land alleged to have been the homestead of J. M. Hammett at the time of his death, and the rents that accrued thereon, and to have set aside to said minors certain alleged exempt personal property, and such an amount of money as might be deemed proper by the court, in lieu of exempt property not in kind, and for one year's support of appellant's wards. The appellee (defendant below) answered by general and special exceptions a general denial, and pleas of not guilty and res judicata. By a supplemental petition, appellant (plaintiff below) specially excepted to the plea of res judicata. The exceptions of appellant to appellee's plea of res judicata were overruled by the court, whereupon the appellant took a nonsuit; stating to the court at the time that he would subsequently make application to have the judgment of nonsuit set aside, and the cause reinstated upon the docket. In accordance with the statement, such motion was subsequently made. The sole ground of the motion was that the court erred in overruling appellant's general and special exceptions to appellee's plea of res judicata. Other than this, no reason is given, or even hinted at, in the motion, for the court's setting aside the judgment of nonsuit entered at the instance of appellant. This motion, upon being considered by the trial court, was overruled, and from the ruling of the court in refusing to reinstate the cause this appeal is prosecuted.

Boyd, Compton & Anderson, for appellant. Thos. B. Greenwood & Son, for appellee.

NEILL, J. (after stating the facts).

The rule that a plaintiff who voluntarily suffers a judgment of nonsuit to be taken against him cannot appeal therefrom (2 Enc. Pl. & Prac. 106, and authorities cited in note) has been modified in this state so as to permit an appeal from an order refusing to set aside such judgment of nonsuit in cases where the plaintiff was surprised by the rejection of legitimate evidence offered in support of his action. Huston v. Berry, 3 Tex. 235; Easterling v. Blythe, 7 Tex. 213. And this is said, in Huston v. Berry, supra, to be perhaps the utmost limit to which an appellate court may go in case of a voluntary nonsuit. However, in Lockett v. Railway Co., 78 Tex. 211, 14 S. W. 564, it is held that where a petition states a good cause of action, and there is evidence strongly tending to sustain...