13 Tex. 258 | Tex. | 1855
The question presented in argument by the appellants, as to the effect of a voluntary dismissal of their suit by the plaintiffs, does not properly arise in this case. That question can only arise for adjudication upon the bringing of a second action. The present therefore is not a.proper occasion for its authoritative determination. It may be observed, however, that the question is one of practice, rather than of absolute principle; upon which the Court would be warranted in adhering to a convenient settled rule of practice in our own forums, however varient from the rule of practice adopted elsewhere. And it is believed that the effect of a retraxit, in the Common Law practice, has not, in our practice, been given to the dismissal of a suit by the plaintiff. (Gillespie v. Redmond et al., Ante.)
It is unquestionable that the plaintiffs had the right to dismiss their suit, unless the appellants, by their answer, had acquired the right to have an adjudication upon the matters therein contained. But the answer does not disclose any valid subsisting cause of action to entitle the appellants to the redress which they seek. It asserts no present right of property which has been violated; nor does it state any actual injury which they have sustained, for which they can demand compensation in damages.
It can scarcely be seriously contended that the failure of the plaintiffs effectually to assert and maintain their title to the land in question, from whatever cause; or the fact of a contingent liability to the plaintiffs on the part of the appellants, can give the latter a right of action against the former, either to rescind the sale, or to recover in damages. Yet such, in effect, is the pretension set up in the answer. By dismissing the suit, the plaintiffs declined the assertion of their right to require the appellants either to defend the title to the land conveyed by them, or to answer for a breach of their warranty.
Judgment affirmed.
