Odum v. Peeler

• Decision Date: 09 December 1925
• Docket Number: (No. 7452.)
• Citation: Odum v. Peeler, 278 S.W. 884 (Tex. App. 1925)
• Parties: ODUM et al. v. PEELER.
• Court: Texas Court of Appeals

278 S.W. 884

ODUM et al. v.PEELER.

(No. 7452.)

Court of Civil Appeals of Texas. San Antonio.

December 9, 1925.

Appeal from District Court, Atascosa County; Covey C. Thomas, Judge.

Action of trespass to try title by Minnie Odum and others against A. M. Peeler.From a judgment that plaintiffs take nothing by their suit, plaintiffs appeal.Reversed and rendered.

Nat L. Hardy, of Jourdanton, and Harry L. Howard, of San Antonio, for appellants.

Bowen & Williams, of Jourdanton, for appellee.

FLY, C. J.

Mrs. Minnie Odum, joined by her husband J. T. Odum, Frank Buchanan, R. L. Cantrell, Mrs. Mary Faulkner, and Mrs. Jannie A. Cantrell, brought this action of trespass to try title to 80 acres of land known as farm tract No. 6547, farm block 72, farm division 3, C. F. Simmonssubdivision, against A. M. Peeler, appellee.The cause was tried by the court, without a jury, and judgment rendered that appellants take nothing by their suit and pay all costs of suit.

The cause has been appealed to this court on one ground — the right of a plaintiff to take a nonsuit after the testimony had been submitted, after the argument of counsel for defendant had been heard, after a motion by plaintiffs to withdraw their announcement of ready and continue the cause had been overruled, and after the court had stated that appellants had not connected themselves with the title to the land.The court placed his decision overruling the application to discontinue the suit on the ground that appellee had sought affirmative relief against appellants.After pleading one link of his title and alleging the payment of certain taxes on the land, appellee stated:

"Defendant prays that plaintiffs take nothing by their suit and that he go hence without day and recover his costs, and in the alternative defendant prays that in the event of a recovery by plaintiffs that defendant recover of and from plaintiffs said sum of $100, representing the purchase price paid by him for said land, with interest thereon from date of payment until paid at the rate of 6 per cent. per annum, and the further sum of $42.18, representing the aggregate sum of taxes paid by defendant on said property since his said purchase, with interest on each of the several items aggregating said sum of $42.18 from their respective date of payment until paid at the rate of 6 per cent. per annum, and that plaintiffs' recovery, in the event they should recover, be subject to the payment of said several sums of money with interest as above alleged and prayed for."

It will be noted that the affirmative relief sought was prayed for only in the event that appellants should recover, and could have no force or effect in case of a dismissal.There was in reality no prayer for affirmative action by the court.The plea for taxes was based on a contingency of appellants' recovery of the land and could not have arisen had the court permitted a nonsuit.There was in fact no plea for affirmative action on the part of appellee.Even if appellee had asked for judgment for the taxes without basing it on a contingency, appellants would have been entitled to their nonsuit, if it did not prejudice the rights of appellee, and appellee could have had his trial on his counter action.French v. Groesbeck, 8 Tex. Civ. App. 19, 27 S. W. 43.The law does not...