William S. Oustott v. John Oustott, 27 Tex. 643

Moore, J. This was a suit by the appellee, John Oustott, against the appellant, William S. Oustott, and their mother Elizabeth Oustott, for the recovery of one-half the value and one-half of the hire of a negro girl in the possession of the said William S. Oustott; but who as appellee alleged, belonged in equal moieties to himself and his mother, said Elizabeth. Mrs. Oustott filed an answer disclaiming any title or interest in or to said negro; and also alleging that she had never asserted or claimed any such interest: whereupon - the suit, as to her, was dismissed.

But no amendment was made by appellee to his petition; nor was there any change made in his prayer for judgment, whereby he had only asked, in the event that said negro should not be delivered for the purpose of being sold for partition between himself and his mother, that he should have judgment against the appellant, William S. Oustott, for one-half of her value and one-half of her hire. Judgment was rendered, however, in favor of the appellee for the negro and her hire; and in the alternative, upon the failure of the appellant to deliver her up, for her entire value as assessed by the jury.

As the point has not been ^discussed by counsel, and may possibly be of no importance on another trial of the case, we will not at present undertake to determine the legal effect of Mrs. Oustott’s disclaimer. The prayer of the petitioner is evidently insufficient to support the judgment of the court; and it is therefore reversed, and the cause remanded for further proceedings.. Reversed and remanded.