McDade v. Sams

• Decision Date: 18 November 1976
• Docket Number: No. 16716,16716
• Citation: 545 S.W.2d 205
• Parties: Clarence McDADE, Administrator of the Estate of A. C. Harris, Deceased, Appellant, v. Willie Mae SAMS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 205

545 S.W.2d 205

Clarence McDADE, Administrator of the Estate of A. C.

Harris, Deceased, Appellant, v. Willie Mae SAMS, Appellee.

No. 16716.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Nov. 18, 1976.

Voorhees & Cooper, Herman D. Voorhees, Robert O. Cooper, Houston, for appellant.

Harris & Graul, Howard A. Lang, Jr., Houston, for appellee.

EVANS, Justice.

This is an appeal from the trial court's judgment setting aside a default judgment previously rendered against the plaintiff on the defendant's counterclaim, and awarding the plaintiff title to and possession of a tract of 23 1/2 acres of land in Waller County, Texas.

The parties were divorced by decree dated June 16, 1958, which recited that no community property had been accumulated during the marriage. The basic dispute between the parties is whether the land in controversy was owned by the community, having been acquired during the marriage, or whether it constituted the separate estate of the plaintiff. The plaintiff's contention is that she acquired title, as her separate estate, upon a conveyance from her brother made in exchange for certain city property which she had inherited from her parents.

Subsequent to the entry of the divorce decree, the defendant A. C. Harris executed a conveyance of his interest in the property to an attorney, E. H. Momberger, as trustee. Thereafter the plaintiff brought an action in trespass-to-try title and for removal of cloud, naming Harris and Momberger as defendants. A joint answer was filed on behalf of both defendants in which they specially plead that title to the land had been acquired in the plaintiff's name for the community and had been paid for with community funds. In a separately filed counterclaim the defendants sought partition of their claimed interest in the property. The parties thereafter filed various amended and supplemental pleadings, and an answer was filed by the plaintiff to the defendants' counterclaim.

The defendant Harris, upon obtaining a reconveyance of Momberger's interest, filed a second amended answer and counterclaim, against seeking partition of his claimed interest in the property and, in addition, a recovery of damages for the loss of use of the premises. A copy of this pleading and citation were served upon the plaintiff; however, copies were not delivered to her attorney.

On July 9, 1973, after the date specified for answering the second amended counterclaim had passed, the trial court entered a default judgment against the plaintiff, reciting that although duly cited, she had failed to appear and answer the defendant's counterclaim. The default judgment declared that the property constituted the community property of the parties, that it should be partitioned between them, and appointed a surveyor and commissioners to effectuate that purpose. The default judgment made no award of damages as prayed for in the counterclaim.

The defendant's counterclaim did no more than assert his claim to an interest in the property which the plaintiff sought to recover in her petition. This could have been accomplished under a statutory plea of not guilty or by a special plea raising the issue. The defendant was not entitled to a decree of partition unless he first succeeded in defeating the plaintiff's claim of title. Since there had been no disposition made of the plaintiff's cause of action, the trial court was without authority to enter a default judgment on the defendant's counterclaim.

"The law of this state does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit.' Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 431 (1959). The Only remedy against the defaulting plaintiff insofar as his cause of action is concerned is an order dismissing his suit for want of prosecution, Smock v. Fischel, 146 Tex. 397, 207 S.W.2d 891, 892 (1948); without prejudice, Murphy v. Stigall (Tex.Civ.App., 1962, writ ref.) 352 S.W.2d 918, 919." Stewart v. Whatley, 479 S.W .2d 84, 85 (Tex.Civ.App.--Waco 1972, no writ).

The default judgment was entered solely upon the basis that the plaintiff had failed to appear on the answer date for the second amended counterclaim. The cause had not been set for trial in accordance with the provisions of Rule 330(b), Texas Rules of Civil Procedure (subsequently repealed effective January 1, 1976, but then in effect) and the trial court was without authority to enter a default judgment under such circumstances.

The entry of the default judgment in the face of the plaintiff's petition and without proper trial setting renders the judgment void. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 431 (1950); McDonald, Texas Civil Practice, Vol. 4, § 17.18, p. 102. The entry of the default judgment denied the plaintiff her day in court upon the cause of action which she asserted in her petition against the defendant.

'Rule 81, Tex.R.Civ.P., provides in part that when the defendant sets up a counterclaim, the plaintiff May plead thereto. It is settled law that a general denial is not necessary when the counter-claim arises out of the same transactions or occurrences alleged in the petition. In Freeman v. Freeman, 160 Tex. 148, 327 S .W.2d 428 (1959), the Supreme Court said that the cases are legion supporting the proposition that the law of this...