Short v. Hepburn

• Decision Date: 01 June 1896
• Citation: Short v. Hepburn, 35 S.W. 1056, 89 Tex. 622 (Tex. 1896)
• Parties: SHORT et al. v. HEPBURN.
• Court: Texas Supreme Court

35 S.W. 1056

SHORT et al. v.HEPBURN.

Supreme Court of Texas.

June 1, 1896.

Certified questions from court of civil appeals of Fifth supreme judicial district.

Trespass to try title between U. F. Short and others and H. S. Hepburn, receiver.A judgment for Hepburn was appealed from by Short & Kelly to the court of civil appeals, which certifies certain questions to the supreme court.Opinion delivered.

Morris & Crow, for appellants.W. S. Simkins, for appellee.

BROWN, J.

The court of civil appeals for the Fifth supreme judicial district has certified to this court the following statement and questions: "In the above-entitled cause, the following issues of law arise, which this court deems it advisable to present to the supreme court of the state of Texas for adjudication, to wit: Question 1.In an action of trespass to try title, where the defendant, by cross bill, seeks affirmative relief, the allegations of the cross bill being in the ordinary form of an action of trespass to try title, fully describing the land, can the plaintiff take a nonsuit, dismiss the cause, and thereby deny to defendant the right to be heard on the cross bill?On this point, does the case of Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427, conflict with Egery v. Power, 5 Tex. 501, Bradford v. Hamilton, 7 Tex. 55, Block v. Weiller, 61 Tex. 692, andSchmidt v. Talbert, 74 Tex. 451, 12 S. W. 284?"

In an action of trespass to try title, the defendant may, in addition to his defensive pleas, set up, in a cross bill or plea in reconvention, his own right and claim to the land, and, by appropriate allegations, seek an affirmative recovery against the plaintiff.Egery v. Power, 5 Tex. 501;Bradford v. Hamilton, 7 Tex. 55;Schmidt v. Talbert, 74 Tex. 451, 12 S. W. 284;De La Vega v. League, 64 Tex. 205.In Egery v. Power, supra, the identical question was involved and decided, and it was held that, in an action of trespass to try title, the defendant might, by plea in reconvention, seek an affirmative recovery against the plaintiff in the suit.In De La Vega v. League, the plaintiff sought partition of the land.One of the defendants, by cross bill, set up title to the entire tract, and asked judgment against the plaintiff for the land.It was in that case objected that the defendant's plea amounted to an action of trespass to try title, and could not be interposed in a suit for partition; but the court held that, under our system of pleading, it was competent for the defendant, by a cross bill, to assert his title to the land, and to recover it, even in a suit for partition.Chief Justice Willie, delivering the opinion of the court, said: "A plaintiff calling a defendant into court for the purpose of obtaining relief against him invites him to set up all the defenses which may defeat the cause of action sued on, or any other appropriate and germane to the subject-matter of the suit, which should be settled between the parties before a proper adjudication of the merits of the case can be obtained.He grants him the privilege of setting up all such counterclaims and cross actions as he holds against the plaintiff which may legally be pleaded in such suit.This is particularly the case in our state, where a multiplicity of suits is abhorred, and a leading object is to settle all disputes between the parties pertinent to the cause of action in the same suit."When the defendant in a suit by a cross bill or plea in reconvention, containing appropriate allegations, shows a cause of action against the plaintiff with reference to the subject-matter of the suit, the plaintiff cannot, by dismissing his case, defeat the defendant's right to a trial upon the cross bill.Egery v. Power, 5 Tex. 501;Bradford v. Hamilton, 7 Tex. 55;Block v. Weiller, 61 Tex. 692;Schmidt v. Talbert, 74 Tex. 451, 12 S. W. 284.In Bradford v. Hamiltonthe court says: "The principle of the rule that the plaintiff cannot discontinue after the defendant has pleaded in reconvention is that, as to the matter pleaded in reconvention, the defendant is the actor or plaintiff.This principle equally applies to every case in which the defendant sets forth matter in his answer which, if true, entitles him to have, and upon which he seeks, judgment against the plaintiff, and, of course, embraces the present case.Where the answer contains matter which constitutes a cause of action against the plaintiff, its effect upon his right to dismiss his suit must be the same, whether it be called a plea in reconvention, or a petition in the nature of a cross action, or by whatever other designation; for defendant, as to the cause of action set forth in his answer, is to be regarded as plaintiff."In an action of trespass to try title, the defendant may file his defensive pleas as a preparation to meet the plaintiff's case upon trial; and he may in addition, by a cross bill or petition, set up his own title and claim to the land as against the plaintiff, and, by appropriate allegations and proper prayer, put himself in the attitude to insist upon a decision...