Jackson v. JacksonJackson v. Jackson
- Reporters:
- Before:
- Graves
A citation by publication on a nonresident defendant in an action for divorce, describing property involved as “three and 6/100 acres of land out of the Austin addition to the town of Hitchcock, Galveston county,” held an insufficient description of the property involved to sustain the judgment thereafter rendered.
Appeal from District Court, Galveston County; J. C. Canty, Judge.
In action for divorce by Ida Jackson against Dave Jackson. Judgment for plaintiff, and defendant appeals. Judgment reversed, and cause remanded.
L. R. Patton, of Galveston, for appellant.
GRAVES, J. In this cause the court below awarded Ida Jackson a divorce from Dave Jackson, gave her the custody of their minor child, and further decreed as follows:
“It is further ordered by the court that 3.6 acres of land out of the northeast part of lot No. 21 of the subdivision of a tract of 231.22 acres of land, out of the S. F. Austin league No. 4, on the north bank of Highland bayou, Galveston county, Tex., be and the same is hereby awarded to the plaintiff, Ida Jackson.”
It was recited that the defendant, Dave Jackson, although having been duly cited by publication, failed to appear and answer, and that a practicing attorney of the court was appointed, who appeared and answered for him. The citation by publication had been issued against defendant pursuant to plaintiff’s affidavit that he was a nonresident of the state of Texas. Subsequent to the rendition of this judgment the defendant, Dave Jackson, did appear by his attorney, and filed a motion to set aside the judgment and grant a new trial on the ground, among others, that the citation by publication con
The only attempt at the description of any property contained in the citation by publication on which the judgment was rendered was this: “Three and 6/100 acres of land out of the Austin addition to the town of Hitchcock, Galveston county, Texas.” Obviously this identifies no particular property, nor furnishes the means of doing so, and hence in legal effect is no description at all.
Appellant’s contention here that in consequence the judgment was not binding upon him is sustained. “Borden et al. v. City of Houston, 26 Tex. Civ. App. 29, 62 S. W. 426; Humphrey v. Beaumont Irrigation et al., 41 Tex. Civ. App. 308, 93 S. W. 180.”
The judgment is reversed, and the cause remanded.
Reversed and remanded.
On Motion for Rehearing.
The appellee, in a motion for rehearing in this cause, directs the court’s attention to the fact that there was no assignment of error in appellant’s brief complaining of that part of the trial court’s judgment herein awarding a divorce as between the parties, and in consequence moves that so much of the judgment below be affirmed; and that under this court’s reversal of the action taken below, the cause be remanded to the trial court for further proceedings upon the issue of the property involved only.
The motion is well taken, and has been granted; our former judgment reversing and remanding the entire cause is therefore modified so as to remand it for further trial upon the property issue alone.
Appellee’s motion for rehearing granted.
A plea in reconvention for damages for wrongfully procuring a writ of garnishment in aid of plaintiff’s suit is a counterclaim founded on a cause of action “arising out of, incident to, or connected with plaintiff’s cause of action,” within
Appeal from Galveston County Court; E. B. Holman, Judge.
Action by Davison & Co. against the Waldman-Ross Grain Company, with Hutchings, Sealy & Co. as garnishee. Judgment for plaintiff, and defendant Grain Company appeals. Reversed and remanded.
H. H. Cooper, of Houston, for appellant.
Geo. Q. McCracken, of Galveston, for appellee.
GRAVES, J. In this cause the appellee sued appellant upon a sworn account for an aggregate sum of $876.83, alleged to be due for different bills of goods sold, at the time suing out an ancillary writ of garnishment against the banking firm of Hutchings, Sealy & Co. based on a verified averment to the effect that appellant did not within appellee’s knowledge have property subject to execution within this state sufficient to satisfy plaintiff’s demand.
Among other answering matters, the appellant filed a plea in reconvention, charging in detail that the garnishment had been wrongfully, maliciously, and illegally sued out with the intent to injure it, and that it had in consequence suffered certain specified damages, for which it asked judgment against appellee. Over the protest of appellant, the court sustained the following special exception interposed by the appellee to this cross-action for damages and dismissed the same:
“Specially excepting to defendant’s said cross-action, plaintiff says that the same is insufficient in law for it to have and maintain the same as against this plaintiff, for the reason that defendant is attempting to set up and recover upon an alleged unliquidated demand as against the liquidated demand of plaintiff. Wherefore he prays the judgment of the court.”
This was clear error. Our statute (
The other matters presented in the briefs will probably not arise upon another trial. For the error pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.