Willacy County Water Control & Improvement Dist. No. 1 v. Fawkes , 1934 Tex. App. LEXIS 575 ( 1934 )

FLY', Chief Justice.

Appellant instituted this suit against ap-pellees for taxes levied by it in the sum- of $719.7S, and appellees filed an answer consisting of general demurrer and general denial and a special plea in regard to the manner and method of assessing property in t(ie water improvement district. Appellant sought a continuance on the ground of the absence of one W. A. Harding, the importance of whose testimony is not denied by appellees. The court overruled the motion for continuance, and appellant then asked permission to take a nonsuit and dismiss the cause from the docket of the district court. The motion to dismiss was overruled by the court, and appellant was forced into a trial of the cause.

The propriety and legality of the action of the district judge in refusing to allow the plaintiff to dismiss his suit is the only question of importance to be considered in this case. It is clear that the court exceeded his authority when he denied appellant a right to which, so far as has been brought to the knowledge of this court, has never been denied in a court of justice. Appellees had filed no cross-action and were not setting up any independent rights which they desired to have redressed by judgment in their favor. They merely set up a defense to the action of appellant and had no right to demand that appellant be held in court and prosecute a suit which the court had apparently broken down by a refusal to grant a continuance. It was clearly an error for the court to refuse a dismissal of the cause when sought by appellant.

The judgment will be reversed, and judgment here rendered that the cause of action be dismissed and that costs in the lower court up to the time of the attempt to dismiss be assessed against appellant, and all other costs ' of that court and this be assessed against ap-pellees.

Reversed a*nd rendered.