Peck v. McKellar , 33 Tex. 234 ( 1870 )

Morrill, C. J.

This cause presents a question of practice in the District Court as to the power of the plaintiff at any time to take a nonsuit; and also, as to the duty of the court to set aside the nonsuit when it is apparent that .the plaintiff was compelled to become nonsuit from occurrences not based upon negligence or want of proper caution on his part.

The question before the court was the ownership of a tract of land, the plaintiff claiming under a deed from defendants. The deed appeared to have- been perfectly formal, and indeed was so, except that the notary had. used the seal of the county court instead of his notarial seal, in attestation of his official acts, which . fact was not discovered till daring the progress of the trial, and was then pointed out by defendant.

As there was no doubt of the fact that the notary used the seal of the county court through a mistake, the cause of the mistake being perfectly apparent, and as there is also no doubt of the power of the notary to rectify his mistakes and to do what he evidently supposed he had done, and what the law required him to do, and as this officer is .still within the jurisdiction of the court, though not accessible at the time, the court having refused the plaintiff the use of the deed as evidence, virtually compeled him to take a nonsuit. The repeated decisions of this court, commencing with those found in Dallam, have established the duty of the district judge to set aside the nonsuit under circumstances which, like those in this case, are beyond controversy. The only question that could arise would be -as to the terms; and we think that the costs should abide the final decision. (Austin v. Townes, 10 Texas, 24; Easterling v. Blythe, 7 Texas, 210; Houston v. Berry, 3 Texas, 235.)

The appellee, in bis brief, does not pretend but that injustice-has been done, but insists that the plaintiff is not precluded from bringing another suit. This would cause additional expense, trouble and delay, and even if with these the cause could again come 'before the court for trial, it would be In violation of those fundamental principles that are or should actuate every court, viz. r “We buy not, we sell net, we deny not, we delay not, we defer not.”

The judgment refusing to set aside, the judgment entered in the case is reversed, the costs are to abide the final decision, and the cause is reinstated.

Ordered accordingly.

Mobmel, O. J.

A rehearing is requested in this case, upon the supposed rule or principle that the plaintiff cannot take a non-suit in a case where the defendant has pleaded in reconvention.

The authorities cited by the counsel, in support of this proposition, do not sustain it. A plaintiff voluntarily comes into court-,. and he can voluntarily depart therefrom, upon paying costs, before the cause is submitted to a jury.

But when a defendant has pleaded in reconvention, the plaintiff as to that plea becomes a defendant, and it does not follow that because he takes a nonsuit against a defendant, upon a cause of action, that he can compel the defendant to take a nonsuit on his cause of action against the plaintiff. A plea of reconVention forms a separate action, and is not necessarily' dependent upon the trial of the action of plaintiff.

If the plea in this cause be a plea in reconvention, the defendant could have proceeded to trial thereon after the plaintiff had announced his determination that he would no further prosecute his cause of action, and might have obtained a judgment in the same way, and recovered, as if the plaintiff had never instituted suit, and had been cited by defendant to defend upon the matters and things set up in the plea of reconvention.

An admission in open court by the plaintiff, that he has no action against the defendant, does not necessarily require the defendant to say the same thing, or of the court to so adjudicate.

But the plea set up is not a plea in reconvention. The plaintiff sued to recover land. The various pleas and answers all are to the effect that the land belongs to the defendant and not to the plaintiff. Simply stating the causes why the plaintiff does not own the land, and why the defendant does, is no more a plea in reconvention than a plea of not guilty, in an action of trespass to try title. The rehearing is refused.

Beversed and rehearing refused.