John Jackson v. Smith Brooks, 1 White & W. 371

Opinion by Ector, P. J. § 679. Plea in reconvention; trial upon, after plaintiff's cause has been dismissed.

In a case where plaintiff sued on an account for rents, and defendant pleaded in reconvention an account due from plaintiff to himself, and on the day of trial plaintiff failed to appear, and his case was dismissed for want of prosecution, and defendant’s case, as made by his plea in reconvention, was tried and judgment rendered in favor of defendant for the full amount set out in said plea, held, that it was not error, after dismissing plaintiff’s action, to try the case on the plea in reconvention of defendant. [Bradford v.

Hamilton, 7 Tex. 55.] But, inasmuch as defendant in his plea in reconvention admitted that he owed the plaintiff the rent claimed, it was error, in rendering judgment for defendant, not to credit plaintiff the amount of rent so admitted to be due him. February 9, 1878. Reversed and remanded.