Cornelius v. Early

• Citation: 24 S.W.2d 757
• Decision Date: 17 January 1930
• Docket Number: (No. 647.)
• Parties: CORNELIUS v. EARLY et al.
• Court: Texas Court of Appeals

24 S.W.2d 757

CORNELIUS v. EARLY et al.

(No. 647.)

Court of Civil Appeals of Texas. Eastland.

January 17, 1930.

Rehearing Denied February 21, 1930.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Action by J. W. Cornelius against Mary Early and others. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Smith & Smith, of Anson, for appellant.

Thomas & Shapard, of Anson, and Clem Calhoun, of Borger, for appellees.

FUNDERBURK, J.

This is a suit brought by J. W. Cornelius to remove a cloud from the title to land situated in Jones county. The defendants were Mary Early and her husband, Charlie Early, Opal Cornelius, a minor, and J. P. Cornelius, individually and as guardian of Opal Cornelius. J. P. Cornelius was the son of plaintiff, and Mary Early and Opal Cornelius were his daughters; his wife being dead. The land in question had been conveyed to J. P. Cornelius at a time when he was a married man and his wife living, and after the death of the wife, leaving surviving her the said two children, J. P. Cornelius reconveyed the property to plaintiff, and the question concerning the title involved the further question of whether said property was the community property of J. P. Cornelius. Plaintiff's petition was filed November 30, 1928. On January 7, 1929, Mary Early, joined by her husband, filed an answer, which, in addition to defensive pleadings, asserted that the deed from J. P. Cornelius to plaintiff, in so far as it undertook to convey more than the one-half interest of J. P. Cornelius, was void, and asked for a cancellation of same. On February 5, 1929, the plaintiff filed a motion reading as follows: "Now comes the plaintiff and dismisses this cause of action as against all of the defendants, and prays the court that such order of dismissal be entered, and at his cost."

On the next day thereafter, February 6, 1929, the court made and entered this order: "On this the 6th day of February, 1929, came on to be heard the motion of plaintiff, J. W. Cornelius, to dismiss the above cause from the docket of this court, and defendants, with pleas for affirmative relief, appeared and objected to said motion; whereupon the court overruled the motion to dismiss and same is hereby in all things overruled."

On the came day (February 6, 1929), Mary Early and husband filed an amended original answer, which reasserted their claim for affirmative relief, including a partition. On the same day Opal Cornelius, a guardian ad litem having been appointed for her, filed a similar answer, containing a plea seeking affirmative relief, including partition.

The case was tried on April 25, 1929. The judgment does not recite an appearance by the plaintiff, but in lieu thereof recites that "the plaintiff, J. W. Cornelius failed and refused to prosecute his suit in this behalf." The appearance of Mary Early and husband, and Opal Cornelius, by her guardian ad litem, Clem Calhoun, is recited, and it is also recited that J. P. Cornelius failed to appear and answer, either individually or as guardian of Opal Cornelius. It is further recited that a jury was waived and "the case was tried on the cross-actions of defendants Mary Early, Charlie Early and Opal Cornelius." Judgment was awarded against J. W. Cornelius, clearing the cloud from defendants' title to the land cast by the deeds made by J. P. Cornelius to plaintiff, and decreeing cancellation of said deeds. A withdrawal of the claim for partition is recited. A further provision of the judgment is: "It is further ordered, adjudged and decreed that plaintiff take nothing as to his suit as against any of the defendants, and that Mary Early, the owner of an undivided one-fourth interest in all the above described land, be admitted into joint possession of same, and that Opal Cornelius and her guardian, J. P. Cornelius, be admitted into joint possession of all of the above described land as the owner of an undivided one-fourth interest in same with plaintiff J. W. Cornelius as the owner of an undivided one-half interest in all of said land, and that defendant J. P. Cornelius as guardian and individually be further discharged in this suit."

The judgment bears date the 25th day of April, 1929. At the same term of court, and on the 26th day of April, 1929, plaintiff, J. W. Cornelius, filed a motion for new trial, contending, among other things, that the judgment on the cross-action was void because of the want of service upon the plaintiff. The motion for new trial having been overruled, plaintiff has appealed, and, in support of a contention that the judgment of the trial court is erroneous and should be reversed, urges four propositions.

The first proposition is: "When plaintiff files a suit and desires to dismiss the same before trial, the trial court cannot deny to the plaintiff the right to take a non-suit at any time before defendants have filed an answer asking for affirmative relief." This appears to be a correct proposition of law, but it is not applicable to the case in hand. Mary Early, joined by her husband, had filed an answer almost a month previously, which we regard as presenting a claim for affirmative relief. Plaintiff did not undertake to dismiss the case in vacation and before appearance day as he might have done under R. S. 1925, art. 2089, without an order of court. The motion to dismiss was made after a part of the defendants answered and after appearance day. It was therefore necessary that the case be dismissed by an order of the court. The order upon the motion was entered on February 6th, the day after the motion was filed, and recites that the defendants had filed cross-actions. From this recital, and the fact that the answer of the minor, Opal Cornelius, was filed the same day, we are justified, we think, in presuming that such answer was on file when the court made its order. If so, all parties were before the court and all defendants had before the court their pleas seeking affirmative relief against the plaintiff. The first proposition, therefore, cannot be sustained.

The third proposition is predicated upon the assumed fact that the plaintiff dismissed his case before the defendants had filed cross-actions seeking affirmative relief, and is, therefore, controlled by what has been said above in reference to the first proposition.

By the fourth proposition it is asserted that when a trespass to try title suit is tried and affirmative relief is sought against the absent plaintiffs or defendants, the failure to make up and file, as a part of the record in the case, a statement of facts adduced upon the trial, is fundamental error and should be considered by the appellate court without being assigned as error. We know of no authority, nor are we cited to any, tending to support such a proposition. Clearly R. S. 1925, art. 2158, has no application, for it in terms applies to defendants constructively served with process and who do not answer or appear by an attorney of their own choosing. A similar contention was before this court in Dalton v. Davis et al., 294 S. W. 1115.

Appellant's second proposition is: "When a plaintiff has filed a suit and the defendant files his answer and sets up a cross-action asking affirmative relief against the plaintiff, it is error to proceed to a trial upon defendant's cross-action against the plaintiff without first serving the plaintiff with a citation in the same manner and form as required in original suits." The proposition, of course, is too narrowly stated to be literally correct. A waiver of citation, an answer filed in reply to the cross-action, or an appearance to same, would be equally effective as the service of citation to confer jurisdiction over the plaintiff's person. We have concluded, however, that upon the record it is our duty to consider whether it affirmatively appears, as is required, that the court had jurisdiction to enter judgment in favor of the defendants against the plaintiff on their cross-actions, or against the plaintiff, as was done upon the cause of action asserted by him.

It is so well settled as not to require the citation of authorities that, in the absence of an appearance by the plaintiff at the trial of the case, the defendants were not entitled to a judgment against the plaintiff upon the cause of action asserted by the plaintiff against the defendants. Burger v. Young, 78 Tex. 656, 15 S. W. 107. The record does not show an appearance of the plaintiff at the trial. Not even the judgment recites such appearance. The error is fundamental, and will require a reversal of the case unless it can be said that certainly no injury has resulted to plaintiff. Whether injury has resulted is a question which upon this record, because of the fact that the plaintiff's cause of action and the cross-actions of the defendants, appear to involve the same matters, may be one of more or less difficulty. For that reason, and because a disposition of the case is controlled by other considerations hereafter discussed, we will not undertake to determine whether the error was harmless.

We will now consider whether or not the court, as affirmatively shown by the record, had jurisdiction of the person of plaintiff to render judgment against him upon the defendants' cross-actions. There was no service, acceptance, or waiver of process upon the cross-actions. Plaintiff filed no answer in reply to the cross-actions. R. S. 1925, art. 2050, provides: "In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in this chapter, except where otherwise expressly provided by law." Within this statutory provision, as applying to defendants' cross-actions, the defendants were plaintiffs, and the plaintiff was defendant. Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172 173. The question is therefore narrowed to a consideration of whether or not the record discloses that plaint...