W. B. Walker & Sons v. Hernandez

• Decision Date: 11 April 1906
• Citation: W. B. Walker & Sons v. Hernandez, 92 S.W. 1067, 42 Tex. Civ. App. 543 (Tex. App. 1906)
• Parties: W. B. WALKER & SONS v. HERNANDEZ.
• Court: Texas Court of Appeals

92 S.W. 1067

W. B. WALKER & SONS v.HERNANDEZ.

Court of Civil Appeals of Texas.

April 11, 1906.

Error from District Court, Travis County; Geo. C. Calhoun, Judge.

Action by Ysabel Hernandez against W. B. Walker & Sons.There was judgment for defendants entered upon plaintiff's motion for a nonsuit, and defendants bring error.Affirmed.

Allen & Hart, for plaintiffs in error.Will G. Barber, and Dickens & Cupp, for defendant in error.

EIDSON, J.

It appears from the recitals of the judgment of the court below, as embraced in the record in this cause, that after the parties had announced ready for trial and the demurrers and exceptions of the plaintiffs in error to the defendant in error's petition had been presented, argued by counsel, and overruled by the court, and the selection of a jury begun, the defendant in error asked the court to permit him to take a nonsuit, and before any order was granted allowing such nonsuit the plaintiffs in error prayed the court to allow them to amend their pleadings in the case, so as to grant them affirmative relief in establishing the release set up by them as against the defendant in error, which request was denied by the court, to which ruling of the courtplaintiffs in error excepted, and objected to the court's allowing defendant in error to take a nonsuit, but the court allowed and granted the motion and prayer of defendant in error to take a nonsuit and dismiss the cause.The judgment of the court below then proceeds as follows: "It is therefore considered, ordered, adjudged, and decreed that this case be, and the same is hereby, dismissed, that the plaintiff take nothing by this suit, and the defendants go hence without day and recover their costs, for which execution may issue, to all of which judgment the defendants in open court excepted."

The plaintiffs in error herein were defendants in the court below, and the defendant in error was the plaintiff in the court below.The action of the court in refusing to permit the plaintiffs in error to amend their pleadings so as to pray for affirmative relief in establishing the release set up by them, and in permitting the defendant in error to take a nonsuit over their objection and protest, is assigned as error by the plaintiffs in error, and this assignment raises the principal question for our consideration upon this appeal.Article 1301, Sayles' Ann. Civ. St. 1897, provides as follows: "At any time before the jury have retired the plaintiff may take a...