McCart v. Scruggs

• Court: Texas Supreme Court
• Writing for the Court: Leddy
• Citation: McCart v. Scruggs, 26 S.W.2d 173 (Tex. 1930)
• Decision Date: 09 April 1930
• Docket Number: No. 1182-5511.,1182-5511.
• Parties: McCART v. SCRUGGS.<SMALL><SUP>*</SUP></SMALL>

26 S.W.2d 173

McCART v. SCRUGGS.^*

No. 1182-5511.

Commission of Appeals of Texas, Section B.

April 9, 1930.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by the City of Dallas, for the benefit of the Texas Bitulithic Company, against Lizzie McCart and another, in which defendant named filed a cross-action impleading Gross R. Scruggs. That part of the judgment awarding defendant McCart judgment against defendant Scruggs on the cross-action was reversed, and the cause remanded by the Court of Civil Appeals [16 S.W.(2d) 973], and the defendant McCart brings error.

Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

Cockrell, McBride, O'Donnell & Hamilton and Ralph Wood, all of Dallas, for plaintiff in error.

Burgess, Burgess, Chrestman & Brundidge and O. A. Fountain, all of Dallas, for defendant in error.

LEDDY, J.

Defendant in error, Gross R. Scruggs, conveyed to plaintiff in error, Mrs. Lizzie McCart, by warranty deed, certain property situated in the city of Dallas. At the date of this conveyance the property was incumbered by a paving assessment placed thereon while the same was owned by Victor R. Smith.

The city of Dallas brought this suit, for the benefit of the Texas Bitulithic Company, seeking a personal judgment on such paving assessment against Smith, and a judgment establishing and foreclosing its lien against plaintiff in error.

In her answer, plaintiff in error by cross-action impleaded the defendant in error, alleging that she purchased from him the property against which the lien was sought to be established and foreclosed by the city of Dallas under a covenant and warranty that same was free of incumbrances. Her cross-action contained the following prayer: "And if plaintiff have judgment against this defendant that this defendant have judgment over against the said Gross R. Scruggs on the aforesaid warranty for such an amount as the law will award and plaintiff prays for such other and further relief legal and equitable as may appear proper."

The case was tried by the court without the intervention of a jury; judgment being rendered in favor of the city of Dallas in rem (no personal service having been had) against Victor R. Smith in the sum of $1,109.71, and also against Mrs. McCart, establishing and foreclosing said indebtedness against the property conveyed to her by Scruggs, she being awarded judgment on her cross-action for a like amount over against the defendant in error.

The Court of Civil Appeals held that, plaintiff in error in her cross-action against defendant in error having prayed that, in the event the city of Dallas recovered a judgment against her she have judgment over against defendant in error for such amount as the law...