Harris v. Schlinke
| Decision Date | 25 November 1901 |
| Citation | 65 S.W. 172 |
| Parties | HARRIS et al. v. SCHLINKE. |
| Court | Texas Supreme Court |
Action by Sidon Harris and another against Carl Schlinke. From a judgment of the court of civil appeals (62 S. W. 72) affirming a judgment for defendant, plaintiffs bring error. Reversed.
Sidon Harris, for plaintiffs in error. Hill & Wright, G. H. Garland, and F. M. Newman, for defendant in error.
On the 14th day of August, 1899, Sidon Harris, Amelia P. Withrow, and Carrie Chew, a person of unsound mind, suing by her next friend, A. P. Withrow, filed suit in the nature of trespass to try title in the district court of Concho county against Carl Schlinke to recover from him certain tracts of land described in the plaintiffs' petition. The defendant was served, and appeared on the 2d day of the term, November 7th, and filed his answer, which consisted of a general demurrer, a plea of not guilty, and a special plea in the nature of a cross bill, in which he set up title to the land in himself, alleging that the title asserted by the plaintiffs constituted a cloud upon his title, and prayed that the cloud be removed. The plaintiffs in the case were not served with this cross bill, nor did either of them appear in person or by attorney. The regular judge of the court being absent, a special judge was elected according to law, and qualified, after which court was opened, and the docket called regularly until this case was reached, when, the plaintiffs having failed to appear, the defendant announced ready for trial. No jury was demanded, and the case was submitted to the judge on the evidence and argument for the defendant. Judgment was entered that the plaintiffs take nothing by their suit, and that the cloud cast upon defendant's title by plaintiffs' claim be removed, and that the plaintiffs pay all costs. The court adjourned on the next day, and within due time the plaintiffs sued out a writ of error to the court of civil appeals, which affirmed the judgment of the district court.
The only question presented in this case is, did the court have jurisdiction of the plaintiffs in this suit to render judgment against them upon the cross bill filed by the defendant, Schlinke, there being no service upon the plaintiffs, they not having appeared in the case after the cross bill was filed? It is well settled in this state that a plea in reconvention or cross bill occupies the same attitude as an independent suit, so that the discontinuance of the main suit will not affect the reconvention or cross bill. The defendant in the main suit is plaintiff in the cross bill, and the plaintiffs in the main suit, against whom the cross bill is filed, occupy the position of defendants with reference to that pleading. Bradford v. Hamilton, 7 Tex. 55. If the plaintiffs in this case had appeared on the day of trial, they might, over the protest of the defendant, have dismissed the original suit, leaving the cross bill pending as a suit in favor of defendant against the plaintiffs. The plaintiffs in the case having failed to appear, the proper practice was for the court to have dismissed the original suit for want of prosecution. Houston v. Jennings, 12 Tex. 487; Browning v. Pumphrey, 81 Tex. 166, 16 S. W. 870. In the case last cited the facts were very similar to this case. A cross bill had been filed, of which the plaintiffs had no notice, and to which they had made no appearance. The case being called, and plaintiffs having failed to appear, the court proceeded, as in this case, to enter judgment that the plaintiffs take nothing by their suit, and in favor of the plaintiffs in the cross bill for the relief prayed for in that pleading. The plaintiffs in the main case made a motion for new trial during the term of the court, which, being overruled, they failed to appeal, but, after adjournment, brought that action for a new trial. Speaking for the court, Judge Stayton said, "Proper practice on the failure of the plaintiffs to be present and prosecute their action would have required that the case should have been dismissed without further action." The court declined to pass upon the question as to whether there was such jurisdiction as would sustain a judgment on a collateral attack, but said of that proceeding, "If the action of the court in this respect was not proper, plaintiffs might have had relief by appeal." A careful examination of the opinion clearly shows that it was not intended to give the sanction of the court to a proceeding such as was had in this case. By the petition in the original suit the plaintiffs called the defendant into court to answer a charge of trespass upon their lands and eviction of them from the possession of it, and asked the court for a judgment establishing the plaintiffs' title thereto, and a restoration of the possession. The plaintiffs were bound to take notice of all pleadings and procedure in answer to the charges made in the original petition, but how can it be said...
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Adam v. Saenger
...occupies the attitude of an independent suit and requires service of the cross-action upon the cross-defendant. Harris v. Schlinke, 95 Tex. 88, 65 S.W. 172. This being so, in the absence of a waiver of service, or an appearance by the cross-defendant, personal service on the cross-defendant......
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...intention of the statute is that the next friend * * * may bring suit * * * for the use and benefit of such minor." In Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172, 173, the facts were, certain plaintiffs, including a person of unsound mind, suing by next friend, filed suit in trespass to t......
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