Williams v. Williams

• Decision Date: 12 December 1896
• Citation: Williams v. Williams, 38 S.W. 261 (Tex. App. 1896)
• Parties: WILLIAMS v. WILLIAMS.
• Court: Texas Court of Appeals

38 S.W. 261

WILLIAMS v. WILLIAMS.

Court of Civil Appeals of Texas.

December 12, 1896.

Appeal from district court, Morris county; John L. Sheppard, Judge.

Suit by Lula A. Williams against J. W. S. Williams for divorce. From an order dismissing the suit on motion of plaintiff, defendant appeals. Reversed.

On October 14, 1895, appellee filed suit for divorce from appellant. On October 29, 1895, appellant filed his original answer, in which he pleaded a general demurrer and general denial. On March 27, 1896, the appellee went before the clerk of the court in vacation, and paid all costs accrued in the case, and ordered the clerk to discontinue the case. April 4, 1896, the defendant (appellant) filed his first amended original answer in vacation, in which he pleaded by way of cross bill, and alleged facts which, if true, entitled him to a divorce from appellee, and prayed for a divorce, and for the custody of their two children. The clerk failed to discontinue the case as requested by appellee, but brought it forward on the docket; and on April 7, 1896 (the court having convened April 6th), the court called the case for trial, whereupon appellee suggested to the court that the case was dismissed on March 27, 1896, and was improperly on the docket. The appellant objected to the dismissal of the case, contending that the attempted dismissal of the case on March 27, 1896, after answer filed, was illegal, and that, the appellant having, prior to the calling of the case for trial, filed his amended answer, seeking affirmative relief, the court could not then dismiss the case. The court held the discontinuance of the case of March 27, 1896, regular and legal, and dismissed or struck the case from the docket, to which ruling appellant reserved a bill of exceptions setting out the facts, and has appealed.

Henderson & Robison and J. M. Moore, for appellant. Jones & Bolin, for appellee.

LIGHTFOOT, C. J. (after stating the facts).

The only question in the case is raised under appellant's first assignment of error, and calls in question the ruling of the court in dismissing the case. Under article 1258, Rev. St. 1895, it is provided that "the plaintiff may enter a discontinuance on the docket in vacation in any suit wherein the defendant has not answered, on the payment of all costs that have accrued thereon." It is provided under article 1260: "Where the defendant has filed a counter-claim seeking affirmative relief, the plaintiff shall not be permitted by a discontinuance of his suit to prejudice the right of the defendant to be heard on such counter-claim." Under this statute the plaintiff may discontinue...