Burger v. Young

• Decision Date: 25 November 1890
• Parties: BURGER v. YOUNG <I>et al.</I>
• Court: Texas Supreme Court

15 S.W. 107

BURGER v. YOUNG et al.

Supreme Court of Texas.

November 25, 1890.

Appeal from district court, Navarro county; RUFUS HARDY, Judge.

W. W. Ballew, for appellant. Simkins & Neblett, for appellees.

HENRY, J.

This suit was brought by appellant against several defendants to try title, and for partition. The plaintiff filed an amended original petition, in which the name of one of the defendants, who was never cited to appear, was omitted. When the cause was called for trial, all of the defendants except one had filed answers. None of the defendants, by their pleadings, sought affirmative relief. When the cause was called for trial, the plaintiff presented, without objection, a verbal motion for a continuance, which was overruled. Plaintiff then asked for time to put in writing his application for a continuance, which was refused. Plaintiff's counsel then took a judgment by default against the defendant who had failed to answer, but refused to read his pleadings or introduce any evidence as to the other defendants. The court thereupon rendered judgment upon the merits in favor of all the defendants who had answered. The refusal of plaintiff's attorney to read his pleading, or to offer any evidence, was, in effect, an abandonment of the prosecution of his cause. It was as much so as an entire failure to appear would have been. In that state of the case, the only order that the court could have properly made was one dismissing his cause for want of prosecution as to the defendants who appeared. For the error of the court in rendering judgment upon the merits in favor of such defendants, instead of dismissing the cause as to them for want of prosecution, the judgment is reversed, and the cause is remanded.