Pillow v. McLean

• Decision Date: 11 December 1935
• Docket Number: No. 7026.,7026.
• Citation: 88 S.W.2d 702
• Parties: PILLOW v. McLEAN.
• Court: Texas Supreme Court

Page 702

88 S.W.2d 702

PILLOW v. McLEAN.

No. 7026.

Supreme Court of Texas.

December 11, 1935.

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

Suit in trespass to try title by Mrs. Rosa McLean against Fred Pillow, in which the defendant filed a cross-action. To review a judgment of the Court of Civil Appeals [86 S.W.(2d) 646], dismissing appeal from judgment for plaintiff, defendant brings error.

Judgment of the Court of Civil Appeals reversed, and cause remanded, with directions.

W. H. Russell, of Hereford, for plaintiff in error.

Cowsert & Cowsert, of Dimmitt, for defendant in error.

HICKMAN, Commissioner.

We adopt the following statement made by the Honorable Court of Civil Appeals:

"The appellee, Mrs. McLean, filed this suit in trespass to try title to recover title and possession of the west one-half of section No. 38, in Block O-4, Castro county.

"The defendant answered by general demurrer, plea of not guilty, and by way of cross-action sought to recover damages by reason of the alleged breach of an executory contract for the sale of said land executed by the parties on January 14, 1929. The contract is attached to and made a part of defendant's answer. He prayed that in the event plaintiff should recover the land, that he have judgment over against her for all sums of money he had paid, together with the value of the improvements he had placed upon the land, and interest, with costs of suit.

"The plaintiff replied by supplemental petition, which contains a general demurrer to the cross-action and several special exceptions. Exception No. 7, which was sustained by the court, is as follows: `Plaintiff specially excepts to all that part of defendant's cross-action filed herein, wherein he alleges the breach of contract and seeks damages for such breach, because it appears from the face of defendant's pleading that defendant's right of action under said contract accrued more than four years before the filing of said cross-action, or the filing of this suit, and that the same is barred by the statute of limitation, and of this she prays judgment of the court.'

"The judgment recites that the court heard and sustained plaintiff's general demurrer and special exception No. 7 to the defendant's cross-action; that the defendant refused to amend; and that the cross-action was in all things dismissed. It further recites that the court then heard the case upon its merits; and based upon plaintiff's evidence and defendant's admission in open court that plaintiff had title to the land in question and was entitled to possession thereof, the court then decreed that Mrs. McLean recover from the defendant, Fred Pillow, the title and possession of the land in controversy, and that Pillow take nothing by reason of his cross-action. It further recites that to the ruling of the court sustaining plaintiff's general demurrer and special exception No. 7 to defendant's cross-action and dismissing said cross-action, the defendant excepted and gave notice of appeal to this court." 86 S.W.(2d) 646, 647.

In due time the defendant filed an appeal bond correctly stating the number of the cause, the names of the parties, the court in which same was tried, and the date of the judgment. The only description of the judgment was in this language: "On November 7th, A. D. 1934, the Plaintiff, Mrs. Rosa McLean, recovered a judgment against the defendant, Fred Pillow, in trespass to try title for the title and possession of the following...