Castro v. Gentiley
| Decision Date | 01 January 1853 |
| Citation | 11 Tex. 28 |
| Parties | CASTRO v. GENTILEY. |
| Court | Texas Supreme Court |
The previous decisions upon the subject of the plea of reconvention, reviewed, and the conclusion established, that a plea of reconvention, properly so called, must set up a claim similar to, or matter connected with, the cause of action of the plaintiff. (Note 9.)
But, independent of our statutory plea of reconvention, it is competent for the Courts to entertain any matter of defense, which would be the proper subject of a cross bill in equity; and where a claim is unliquidated, and therefore not pleadable in set-off, dissimilar to, and unconnected with, the plaintiff's cause of action, and therefore not pleadable in reconvention, simply, equitable grounds of relief may intervene (for example, insolvency of the plaintiff, and a reasonable fear that the claim of the defendant will be lost, unless he be permitted to interpose it), and entitle the claim to be entertained; and where the facts are properly alleged, the denomination of the plea is not important.
Appeal from Medina. This suit was brought on a note of hand given by the appellant to the appellee.
The defendant, in his answer, admitted the note, but claimed some credits for payments, and answered in reconvention, that a bond was given to him, by the plaintiff, for the conveyance of a lot of land, and averred that the plaintiff had conveyed the same land to an innocent purchaser without notice, and thereby deprived himself of the ability to discharge the obligation of his bond, and claimed the value, which he averred to be one dollar per acre. To the plea in reconvention, the plaintiff demurred; and his demurrer was sustained by the Court. The plaintiff had judgment, and the defendant appealed. The judgment of the Court on the demurrer was assigned for error.Vanderlip & Jones, and Denison, for appellant.
S. G. Newton, for appellee.
The right of the defendant, to plead in reconvention, is not a Common Law right, but is given by the statute, in Art. 609, Hart. Dig. It provides as follows: “Where the defendant may have a claim against the plaintiff, similar in its nature, but it need not be of the same degree, to that of the plaintiff's, he shall be permitted to file in his answer a plea of reconvention, setting forth the amount due him, and judgment shall be given in favor of the party establishing the largest claim, for the excess of his claim over that of his opponent, and for costs.”
The cases decided by this Court, supposed to be under the law recited, will be noticed in their order. The first is the case of Thomas v. Hill, Adm'r de bonis non, 3 Tex. R., 270. It was a suit brought against the administrator, by the former administrator, to recover the amount of money paid by him for and on account of the estate. The defendant pleaded, in reconvention, the amount of the hire of certain slaves belonging to the estate, that the former administrator, who was the plaintiff, had held in his possession, and had not accounted for. The plea was sustained by this Court. This was a case clearly within the statute.
The next was the case of Egery v. Power, 5 Tex. R., 501. It was a suit to recover land and damages for use and occupation. The defendant, in his answer, claimed a better title, and prayed to be quieted in his possession, and prayed for damages sustained by reason of the plaintiff's title being a slander and a cloud on his better title. The plaintiff was permitted to take a nonsuit, against the opposition of the defendant. On appeal, it was considered by the Court, that the defendant's plea was good in reconvention, and that the plaintiff had no right to take a nonsuit. The doctrine was based mainly upon the decisions of Louisiana, supposed to be in analogy to the provisions of our statute, from which it was concluded, that any cause of action, arising from or connected with the original action could be set up in the answer, in reconvention.
The next is the case Walcott v. Hendrick, 6 Tex. R., 406. It was a suit brought by...
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Goldstein v. Union Nat. Bank
...81 S. W. 988; Presnall v. Bank (App.) 151 S. W. 873; Sperlin v. Loan Co. (App.) 103 S. W. 232; Allbright v. Aldrich, 2 Tex. 166; Castro v. Gentiley, 11 Tex. 28; Henderson v. Gilliam, 12 Tex. 71; Hamilton v. Hook, 26 Tex. 302; Bank v. Townsend (App.) 147 S. W. 617; Manufacturing Co. v. Bank ......
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Dees v. Thompson
...should have been sustained, and the cross-action stricken out. Boyd v. Clark, 21 Tex. 425; Carothers v. Thorp, 21 Tex. 358; Castro v. Gentiley, 11 Tex. 28. Under the third assignment, appellant complains that the verdict of the jury was contrary to law in allowing him punitive damages witho......
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...leaving the defendant, who holds a just demand, for which plaintiff is liable, without any security to enforce its payment. Castro v. Gentiley, 11 Tex. 28; Henderson v. Gilliam, 12 Tex. 71; Hamilton v. Van Hook, 26 Tex. 302. We think it clear that, under these authorities, when Schwulst bec......
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Oscar v. Sackville
...announcing this same doctrine. Walcott v. Hendrick, 6 Tex. 418; Carothers v. Thorp, 21 Tex. 358; Duncan v. Magette, 25 Tex. 255; Castro v. Gentiley, 11 Tex. 28. It was also held by the Supreme Court in the case of Calhoun v. Pace, 37 Tex. 455, cited in our former opinion in this case, that ......