Evans v. McNeill , 1931 Tex. App. LEXIS 1318 ( 1931 )

BLAIR, J.

On June 20, 1930, appellant sued appellee for an accounting upon two written contracts, by the terms of which the parties became interested in acquiring oil and gas leases, and in drilling oil wells, and providing that appellant was to receive $100 per month for his services in locating oil and gas deposits, and to also receive one-eighth of the net profits from sales of leases, oil or gas; appellant alleging that $500 was due him as salary; and that numerous leases were taken in the name of appellee, which he sold, sublet, or assigned without advising with or paying appellant anything therefor; and appellant prayed for an accounting of the partnership business, the appointment of a receiver of the properties, and for dissolution of the partnership. On July 12, 1930, ap-pellee answered by a general demurrer, special exceptions, a general denial, and a special plea under oath that both contracts had been terminated by mutual agreement in writing, settling all matters between the parties. On July 12, 1930, appellant filed his supplemental petition, denying under oath that he had executed any writing terminating the contracts; and on the same day appellee filed his supplemental answer, reaffirming that appellant had executed a release of the contracts; and that appellant had, on July 8, 1930, executed and delivered his written confirmation of the said release.

On October 7, 1930, appellant filed his second supplemental petition, denying that he had executed any confirmation of the release, which was signed by his counsel. On the same day, October 7,1930, appellee filed what was designated “Defendant’s Second Supplemental Answer,” but which in fact was his second supplemental or amended answer and cross-action, reaffirming that appellant had released the contracts and had confirmed said release in writing; and by cross-action prayed that the contracts and the lis pendens notice of the suit be cancelled and annulled as a cloud upon the title to his leases in Williamson'county ; whereupon the following, according to the recitations in the judgment, transpired:

“On this October 7, 1930, being the date on which this case was set for trial came on to be heard this ease, and thereupon same tie plaintiff and defendant by their respective attorneys, and thereupon the following proceedings was had, to-wit:

“Plaintiff requested leave to file his second supplemental petition which re'quest was granted. The defendant requested leave to file his second supplemental answer and cross-action, which request was granted, and thereupon the plaintiff requested the court to pass upon the defendant’s special exceptions, and thereupon defendant announced that since this was to be a trial on the merits he would waive all of his special exceptions to plaintiff’s pleadings. Thereupon plaintiff announced that he would be ready for trial on the application for receivership but did not understand that the case was set on its merits for this date but the court was of the opinion that the ease was set for this date for the consideration of not only the application for receiver but for the case to be disposed of ■ on its merits. Thereupon the plaintiff verbally requested that the case be continued to which the defendant objected, and plaintiff was granted time in which to prepare and file his formal motion for continuance but which motion was never filed. * ⅜ * Thereupon defendant insisted that plaintiff be required to announce and that the trial proceed, but plaintiff failed to announce or to present a written motion for continuance and upon being requested by the court to fake some action, the plaintiff verbally moved to dismiss this suit to which the defendant objected because he had heretofore filed a cross-action and which request on that account was by the court refused. Thereupon the plaintiff requested that he be permitted to take a non-suit, which request was granted without prejudice to defendant’s cross-action, and thereupon defendant announced ready on his cross-action and demanded trial but plaintiff remained silent. There being no jury and the matters of law and of fact being submitted to the court, the court after the foregoing proceeding and after the hearing of the pleadings and evidence, finds and is of the opinion that the law and the facts are with the defendant on his cross-action and that he is entitled to the relief prayed for by him.”

Accordingly judgment was rendered for ap-pellee canceling and annulling the contracts sued upon by appellant and the lis pendens notice of his suit as clouds upon title to land and leases owned by appellee; hence this appeal.

It is the contention of appellant that this judgment was by default, without citation or notice to him of the cross-action of appellee, and therefore void. We do not sustain the contention. It is true that no citation was issued out of the cross-action, but after it was filed counsel for appellant appeared in the case and sought a continuance of the case, and, failing in this, sought to dismiss appellant’s suit, which was refused ■because appellee had filed his cross-action. Counsel then took a nonsuit, which, under order of the court, was without prejudice to appellee’s cross-action; and, although asked to do so by the court, counsel in open court refused to further appear or answer in the cross-action seeking to cancel and annul the very contracts sued upon by appellant, but “remained silent” as the court proceeded to try the cross-action. ■

It is a settled rule that, where a plaintiff in a suit appears, either in person or by counsel, and proceeds with the trial of the cause, such as asking for a continuance, seeking to dismiss his suit, taking a nonsuit without prejudice to a cross-action filed, and in open court refuses to appear or answer in the cross-action theretofore filed, growing out of. the subject-matter of his suit, he must take notice of each and every pleading there,-tofore filed, including the cross-action. Sullivan v. Doyle, 108 Tex. 368, 194 S. W. 136; Roller v. Reid, 87 Tex. 76, 26 S. W. 1060; York v. State, 73 Tex. 651, 11 S. W. 869; Edinburg Irrigation Co. v. Ledbetter (Tex. Civ. App.) 247 S. W. 335; Gregg v. Texas Bank & Trust Co. (Tex. Civ. App.) 235 S. W. 689; Dougherty v. Bank (Tex. Civ. App.) 258 S. W. 501.

Nor was the judgment rendered against appellant by default. Appellant’s pleadings for recovery on the two contracts remained a part of appellee’s pleadings on his cross-action to cancel and annul the contracts, even after appellant took his nonsuit. Howe v. Central State Bank (Tex. Civ. App.) 297 S. W. 692 (writ ref.). Counsel for appellant refused on request of the court to answer or proceed in the cross-action after he had taken a nonsuit for appellant. The judgment taken under these facts was not one by default, but ⅝ “judgment nihil dicit,” which amounts to a confession of the cause of action stated, and carries with it, more strongly than a judgment by default, admission of the justice of appellee’s cross-action. Howe v. Bank, supra.

Nor do we sustain appellant’s contention that the court erred in rendering judgment canceling and annulling the lis pendens notice, because appellant had theretofore taken a nonsuit, which terminated the lis pendens notice as a matter of law. If such be the rule, to which we agree, then no harm could come to appellant because thd court canceled and annulled the lis pendens notice, which had already become canceled and annulled by virtue of appellant taking his nonsuit.

The judgment of the trial court will be affirmed.

Affirmed.