Lucas v. Dallas County, 12828.
| Decision Date | 17 February 1940 |
| Docket Number | No. 12828.,12828. |
| Parties | LUCAS et al. v. DALLAS COUNTY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Dick Dixon, Judge.
Action to recover community property by Esther Lucas against the County of Dallas, wherein the plaintiff's husband, Parker V. Lucas, intervened. From a judgment sustaining defendant's plea in abatement and dismissing suit, the plaintiff and the intervener appeal, and the defendant cross-assigns error.
Affirmed.
W. R. Herring, of Dallas, for appellants.
E. G. Moseley and Harold McCracken, both of Dallas, for appellee.
The court below sustaining a plea in abatement to appellants' suit, dismissed same, resulting in this appeal. The nature of the suit and the facts giving rise to same, are these: Parker V. Lucas and his wife, Esther Lucas, owned 88 and a fraction acres of land in Dallas County, being community property and their homestead. Dallas County, needing 8.64 acres of the land for public road purposes, instituted condemnation proceedings against Mr. Lucas; these proceedings resulted in judgment in favor of the County, vesting title for road purposes, and awarded Mr. Lucas the sum of $864.68 damages, which was paid into the registry of the court, and was received by him, thus bringing the condemnation proceedings to a close. Soon thereafter, Mrs. Esther Lucas brought this action against the County to recover the premises involved, and for damages, alleging that her husband (Parker V. Lucas) had refused to join her in the suit, or in any suit or action in this or any other court to recover for plaintiff her title and possession to said premises, and for damages, praying that she be accorded permission to prosecute the suit without the joinder of her husband.
The events immediately following, as detailed in appellants' brief, are substantially that, the defendant urged a plea in abatement on the ground that, being a married woman, plaintiff could not sue alone, which plea would have been sustained but for the request by plaintiff's counsel for time to induce Mr. Lucas to join his wife as a plaintiff. Afterwards, on Feb. 15, 1938, Mr. Lucas intervened and filed a pleading, the significant allegations of which, showing the capacity in which and the purpose for which he entered the suit, are these: "This plaintiff (Parker V. Lucas) represents to the court that in joining his wife as a party plaintiff herein he does not seek or demand the recovery for himself, for his own individual use or benefit, the title and possession of the described realty or other rights, titles, interest or homestead rights, whether same be separate or community property and rights; that he joins his wife as a party plaintiff in order by legal action to recover for her all of her rights, titles, interests, homestead rights and title and possession of the described land, whether same be a part of her community property or in the alternative a part of her separate property and rights".
In its first amended answer, filed March 30, 1938, appellee urged, among other defenses, a plea in abatement in three paragraphs, the cumulative effect of the allegations being that, the suit was for the recovery of community property, hence could not be maintained by the wife alone (absent exceptional situations authorizing same), and that, the pleading filed by Mr. Lucas did not cure the defect, in that, he sought to make himself a pro forma party simply, and not an active litigant seeking recovery; and furthermore that the matters sought to be litigated were res adjudicata, having been definitely and finally settled in the condemnation suit.
In its ruling, the court seems to have treated each paragraph as a separate plea in abatement; overruling paragraphs 1 and 2, but sustained paragraph 3, and dismissed the suit. We do not think appellee's answer presented three separate pleas in abatement, but only one, each paragraph constituting an element of the plea. However, the...
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