Egery v. Power

• Decision Date: 01 January 1851
• Citation: 5 Tex. 501
• Parties: EGERY AND OTHERS v. POWER.
• Court: Texas Supreme Court

5 Tex. 501

EGERY AND OTHERS

v.POWER.

Supreme Court of Texas.

1851.

Where a plea in reconvention is well pleaded the plaintiff cannot claim a nonsuit.

The plea of reconvention is derived from the civil law. By that law, to entitle a party to reconvene, it is not requisite that his claim be liquidated, provided it be incidental to and necessarily connected with the main action. Nor is it perceived that our statute introduces any new rule in this respect. It was enacted to regulate, not to give the remedy. The only requisition of the statute is that the claim be “similar in its nature” to that of the plaintiff.

In an action of trespass to try title and for damages, the defendant may by plea of reconvention claim that the land be decreed to him, that the title of the plaintiff be annulled, and that he have judgment for the mesne profits.

To permit the defendant to reconvene, so as to obtain in one action an adjudication of the respective claims of the parties, is more convenient in practice and more consonant with our system of pleading than to restrain him to matters merely defensive, and to compel him to resort to another suit in order to obtain an adjudication of his rights and redress of grievances which he may have suffered at the hands of the plaintiff in respect to the same subject-matter. (Note 90.)

Error from Calhoun. The defendant in error brought suit against the plaintiffs in error, under the “act to provide the mode of trying titles to land,” (acts of 1840, p. 136,) to recover the possession of a tract of land to which he claimed title, and damages in the sum of two thousand dollars for the use and occupation of the premises.

The defendants pleaded in reconvention that the legal title to the land in controversy was in themselves; that the plaintiff had committed trespasses, & c., upon the land to the damage of the defendants $2,500; for which they prayed judgment, and that the pretended title of the plaintiff should be canceled and annulled, and that a writ of possession should be awarded them.

The plaintiff subsequently elected to take a nonsuit; to which the defendants objected upon the ground that, they having pleaded in reconvention, the plaintiff could not deprive them of the right of a trial of the truth of the matters set up in their plea. But the court overruled the objection and entered the judgment of nonsuit; from which the defendants appealed.

J. F. Smith, attorney in fact for plaintiffs in error.

The plea of reconvention was a creature of the civil law; and as our statute allowed it as a remedy here, we must look to the civil law and to the decisions of civil law courts for the nature of the plea and the office it is made to perform. (1 White Recop., 285.) The plaintiff against whom a plea of reconvention is filed cannot discontinue. (4 N. S., 439; Benj. & S. Dig., 553.) The claim of the defendants is larger than that of the plaintiff, and they are therefore plaintiffs as to the surplus claimed. (6 N. S., 611; Id., 689; Benj. & S. Dig., 554.) It is not necessary that the claim in reconvention be liquidated. (7 N. S., 290; 2 N. S., 73; 18 La., 378;4 Id., 334.) It is only necessary that it should grow out of the same transaction as that sued on; and both demands must be tried together. Where a plaintiff takes a nonsuit, defendant's claim in reconvention will be disregarded if he be left in the same situation in which he was before the institution of the suit. (4 La. R., 458.) The defendants in this case could not be in the same situation that they were in before the institution of the suit, for the pretended claim set up by the plaintiff has thrown doubt and distrust upon their title, &c.

R. Hughes, for defendant in error.

We admit that where in a proper case a proper plea of reconvention is interposed, it is not competent for the plaintiff to escape the effect of the plea and avoid recovery against him on the plea by taking a nonsuit, because by the plea, to the extent of the claim set up by it, the plaintiff becomes a defendant, and subject to all the rules applicable to a defendant. But this rule has no application to the action of trespass to try title to land. This action is regulated by the act of 1840. (Hart. Dig., art. 3220, et seq.) It is to try title to land and to recover damages; in which the judgment, if there be a verdict for the plaintiff, is that he recover the land sued for and damages assessed, if any, by the jury. But a verdict for damages does not necessarily follow a verdict for the land, the provision of the statute being that the jury, if they find for the plaintiff, may in the same verdict give damage for the mesne profits. The nature of the action or claim which the plaintiff sets up by his petition is for the recovery of the land and for damages as compensation for mesne profits, if as a consequence of the recovery the jury choose so to find. Now is such a claim subject to reconvention?

Is the claim of “the same nature” with that of the plaintiff? It is only a claim for damages for a trespass, and is not also a claim for the recovery of the land.

But suppose we consider it a claim of the same nature with that of the plaintiff; and suppose a verdict is rendered for the plaintiff for his land, and at the same time a verdict for the defendant for a balance on the plea of reconvention. Then what judgment would the court render? The law requires a judgment to be rendered in favor of the defendant for the excess of his claim over that of the plaintiff and for his costs; and the law for trying titles requires a judgment in favor of the plaintiff for his land, upon which the costs are a necessary consequence. So that, carrying out the views of the plaintiff in error, in one case we have two final judgments produced by the separation of the plaintiff's cause of action, one for the plaintiff and one for the defendant, in which they both recover their costs.

A proposition leading to such a result will scarcely be maintained.

WHEELER, J.

It is admitted that if the matters embraced in the plea were well pleaded the plaintiff had not the right, under the law and the decisions of this court, to take a nonsuit. But it is insisted that it was not competent for the defendants to plead in reconvention in this action. And this is the question to be determined.

The right to plead in reconvention was derived from the civil law. And in Louisiana, where the civil law prevails, there have been frequent adjudications upon this subject. The local legislation there is said to have made no change in the ancient civil law upon the subject of reconvention. It was so held in the case of Agaisse v. Guedron (2 Mart. R., N. S., 82, 83) before the adoption of the code of practice, when it was said the legislation of that State had passed the subject of reconvention in silence, and that the ancient law upon that subject was then in full force. And it was again so held in Montgomery v. Russell, (7 Mart. R., N. S., 290,) since the adoption of the code, which, it is there said, has made no change in the civil law upon that subject, though it has decided a question not clearly settled by the jurisprudence existing at the time of its adoption; that...