Etter v. Dignowitty , 77 Tex. 212 ( 1890 )

HENRY, Associate Justice.

—This was an action of trespass to try title brought by appellees. The petition described the land “ as being the south one-half of garden lot No. 2, of one and one-half acres, in division E in the town of Del Rio in the county of Val Verde.”

The defendant appeared and pleaded not guilty. An order of survey of the land was made, and a survey of it was reported and filed.

After the report of the survey had been filed the defendant withdrew his answer and filed a disclaimer of title to the land as described in plaintiffs’ petition.

The cause was tried without a jury and a judgment was rendered for the recovery of the land.

The description of the land in the judgment, in addition to the description of it contained in plaintiffs’ petition, added from the surveyor’s, report a description by courses and distances and physical objects.

The disclaimer was filed on the same day that judgment Avas rendered, and on the folloAving day the defendant filed his request for the court to file its conclusions of law and fact. The defendant filed a motion for new trial, not under oath or supported by affidavit, attacking the correctness of the report of survey.

The appellant complains of the judgment against him for costs and of the judgment by a different description of the land from that contained in the petition, and because the judgment rendered fails to conform in every particular of description to the surveyor’s report.

In the case of Storey v. Nichols, 22 Texas, 93, it is said that “the withdrawing the pleas is an implied confession of judgment, having reference to the cause of action stated or attempted to be stated in the petition.”

After he had withdrawn his answer and disclaimed, defendant had the right to be heard at the trial to object to plaintiffs introducing proof of title to land not claimed in the petition.

Such objection was not made at the trial, nor was it properly made to appear by the motion for a new trial that the land described by the surveyor’s report was not the identical land claimed in the petition.

The surveyor’s report was on file when defendant withdrew his answer and disclaimed. The survey was made with his knowledge and with reference to being used as evidence on the trial of the cause. If the land described in the report was in fact the same land that was described in the petition, the fact that the report described it with greater particularity was not a reason for its being excluded as evidence, even if it had been objected to at the proper time. The judgment indicates that it is for the same land described in the petition, and the defendant has not in a proper manner made it appear that an error was committed in that or in any other particular.

The defendant not having entered his disclaimer until after he had answered, was subject to the judgment for costs that was rendered against him.

The judgment is affirmed.

Affirmed.

Delivered May 6, 1890.