Opinion
Application No. 16039.
Decided November 1, 1928.
1. — Practice — Right to Dismiss.
The plaintiff, where defendant has not by his pleadings sought affirmative relief, has the right to dismiss at any time before judgment is rendered.
2. — Same — Pleading — Defense or Affirmative Relief.
Pleading by defendant, though alleging matters on which a cross action for affirmative relief might have been maintained, will not deprive the plaintiff of the right to terminate the case by dismissal where such facts are pleaded merely as matter of defense, and not by way of cross action, nor with prayer for affirmative relief, the place of which prayer will not be supplied by that for general relief, which will be construed in the light of the general and merely defensive purpose of his pleadings.
3. — Writ of Error — Dismissal of Appeal.
Where the appellate court erroneously dismissed for want of jurisdiction an appeal which appellant was entitled to prosecute, the Supreme Court will refuse writ of error if the judgment appealed from was obviously correct.
Application by Thomason for writ of error on a judgment of the Court of Civil Appeals for the Eleventh District dismissing his appeal from Haskell County.
Sherrill and Hamilton, Executors, sued Thomason in the District Court, and defendant appealed from a judgment permitting dismissal of the case there by plaintiffs. His appeal being dismissed for want of jurisdiction, he applied for writ of error which is here refused.
G. W. Thomason, plaintiff in error, in pro. per.
This case originated in the District Court of Haskell County. The suit was one in trespass to try title, filed by R. E. Sherrill and another against G. W. Thomason. Thomason answered in the case, setting up some details of his claim of title, and made other pleas appropriate to a defense of Sherill's action. The case came on for trial before the court, but before the court had rendered judgment the defendants in error, Sherill et al., dismissed their suit over the protest of the plaintiff in error. The trial court, however, permitted the dismissal, and refused to re-instate on the motion of the plaintiff in error, apparently on the ground that the defendants in error had the right to dismiss their suit since the plaintiff in error had not filed a cross action or asked for any affirmative relief in his answer.
An examination of the record shows that the conclusion of the trial court was correct. While Thomason pleaded defensive matters, upon which a cross action might have been based, his answer was not a cross action, and contained no prayer for affirmative relief. The insistence in the appellate court was that his prayer for general relief should be construed as one for affirmative relief. We do not think so. The prayer must be construed in the light of the general purpose of the pleadings, which was defensive only.
Thomason appealed from the orders of the District Court, and when the case reached the Court of Civil Appeals that court dismissed the appeal for want of jurisdiction. Thomason v. Sherrill et al., 4 S.W.2d , p. 304. In this action we think the Court of Civil Appeals erred. We are of the opinion that Thomason had the right to maintain his appeal, but we are clearly of the opinion that there was no merit whatever in his appeal, and for this reason we decline to grant the writ of error, and will accordingly dismiss his petition for want of jurisdiction.