Throckmorton v. Davenport
| Decision Date | 10 May 1881 |
| Docket Number | Case No. 3679. |
| Parties | W. E. THROCKMORTON v. J. H. DAVENPORT. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
ERROR from Erath. Tried below before the Hon. J. R. Fleming.
Suit by Davenport against the county surveyor of Erath county to compel a survey of one hundred and sixty acres of land claimed by him as a pre-emptor, and against Satterwhite and Throckmorton, who, it was alleged, were trespassers who had forcibly ejected the plaintiff from possession. The action was dismissed as to the surveyor, and judgment rendered after trial against the other defendants.
Buck & Frank, for plaintiff in error.
J. D. Berry and J. W. Robertson, for defendant in error.
The field notes of the land sued for, as given in plaintiff's petition, are as follows: The petition contains no other description sufficient to identify the land. In the judgment the field notes are the same with the exception of the second and fourth calls, in which the bearings are N. 71°>> W. instead of S. 71° W., and S. 71° E. instead of N. 71° E. The effect of the change is that a very considerable part of the land adjudged to plaintiff is land not claimed in his pleadings. It is manifest error to render in favor of plaintiff a judgment not authorized by the allegations or prayer of his petition, and as this error is embraced amongst those assigned, it entitles plaintiff in error to a reversal of the judgment. Hall v. Jackson, 3 Tex., 309. This disposition of the case renders it unnecessary to notice other questions not likely to recur on another trial. We will only add, that the suit was not only to enforce a survey, but was also against parties in possession, to recover the land, and that we entertain no doubt as to the right of the plaintiff to dismiss as to the surveyor, and yet prosecute his suit to try title against the other defendants. The judgment is reversed and cause remanded.
REVERSED AND REMANDED.
To continue reading
Request your trial
-
Frederickson v. Cochran
...in his pleadings. 4 Rule 301, T .R.C.P.; Rich v. Western Union Telegraph Co., 101 Tex. 466, 108 S.W. 1152, 1154 (1908); Trockmorton v. Davenport, 55 Tex. 236, 237 (1881); Milliken v. Smoot, 64 Tex. 171, 173 (1885); Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130, 132 (1942); Oil Field Hauler......
-
Smith v. Conner
...in this case as ground for reversal. Hall v. Jackson, 3 Tex. 305; W. U. Tel. Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; Throckmorton v. Davenport, 55 Tex. 236. Besides, it appears that the party against whom the judgment of the district court was rendered did make a motion to set aside such ......
-
Cooper v. Conerty
...Hall v. Jackson, 3 Tex. 305; Menard v. Sydnor, 29 Tex. 257; Walker v. Lewis, 49 Tex. 123; Stephenson v. Bassett, 51 Tex. 544; Throckmorton v. Davenport, 55 Tex. 236; Frazier v. Woodward, 61 Tex. 449; Middlebrook v. Zapp, 73 Tex. 31, 10 S. W. Rep. 732. We therefore recommend that the judgmen......
-
Martin v. Abbott
...the east 90 feet of the lots described in the petition, but this judgment was void because not authorized by the pleadings. Throckmorton v. Davenport, 55 Tex. 236. It is contended in the briefs and in the arguments that the judgment correctly describing the property in controversy was enter......