E. J. Brown v. P. S. Pfouts, 53 Tex. 221

Bonner, Associate Justice. As a general rule of practice, where the defendant, as in this case, reconvenes, the plaintiff will not be permitted to take a voluntary nonsuit, to the prejudice of the right of the defendant to an adjudication upon the matters contained in his plea in reconvention. Egery v. Power, 5 Tex., 501; Bradford v. Hamilton, 7 Tex., 57; R S., art. 1260. All the cases, however, to which our attention has been called, are those in which the objection was taken at the time the nonsuit was asked.

It does not appear but that the nonsuit as to Brown in this case was taken when the same was regularly called for trial, and when he was presumed to have been present in person or by counsel, and no objection was then made to the action of the court. Two days subsequently, motion was made by two of several attorneys representing Brown, to set aside this judgment; but no sufficient reason is shown why they were not present and did not object at the time, and no allegation is made in the motion that there was merit in the plea in reconvention.

Under the rules of practice in analogous cases, as in motions to set aside judgments by default, the motion under consideration was, on these grounds, defective. Foster v. Martin, 20 Tex., 118; Cook v. Steel, 42 Tex., 56. As there was no trial or judgment upon the merits of the respective titles of the parties, there would not arise from the action of the court below any prejudice to Brown as a question of law, and none is shown as a question of fact, by operation of the statute of limitations or otherwise. The judgment of the court below is accordingly affirmed. Affirmed. [Opinion delivered June 15, 1880.]