Cunningham v. Wheatly
Texas Supreme Court
Error from Fayette, Tried below before Hon. J. H. Bell. Suit by Wheatly against Cunningham and Hontz on a joint and. several promissory notes; the defendant, Cunningham^ answered and set up matter in reconvention ; Hontz not having answered, there was a judgment by default against him. The plaintiff then dismissed as to Cunningham, and took judgment final against Hontz, whereupon the defendant sued out a writ of error.
1Opinion of the CourtWheeler, J.
Repeated decisions of this Court have settled that the plaintiff cannot dismiss his suit after the defendant has pleaded in reconvention, and thus deprive the latter of the right to an adjudication on the merits of his plea. (Bradford v. Hamilton, 7 Tex. R. 55, and cases cited.) As to his plea in reconvention, the defendant is to be deemed the actor, and occupies the attitude of a plaintiff; and the dis-mission by the Court, at the instance of the adverse party, is *185to be deemed a ruling adversely to the defendant, who thus, by his plea, is asking a recovery against the plaintiff. It is as…
2Cited by21 opinions
- Davis v. Wichita State Bank & Trust Co.Court of Appeals of Texas · 1926
- State v. St. Louis Southwestern Ry. Co. of TexasCourt of Appeals of Texas · 1913
- Barrier v. LoweryTexas Commission of Appeals · 1929
- Automobile Finance Co. v. BryanCourt of Appeals of Texas · 1928
- White v. San Antonio Waterworks Co.Court of Appeals of Texas · 1895
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