
    FORD v. FORD et al.
    
    No. 8942.
    Circuit Court of Appeals, Fifth Circuit.
    Dec. 13, 1938.
    
      G. Woodson Morris, of San Antonio, Tex., for appellant.
    John C. Beasley, of Beéville, Tex., for appellees.
    Before SIBLEY and HUTCHESON, Circuit Judges, and DEAVER, District Judge.
    
      
       Rehearing denied Jan. 16, 1939.
    
   SIBLEY, Circuit Judge.

The appellees brought suit in a state court against appellant P. C. Ford, praying to recover possession of a % interest in certain land, in the form of trespass to try title. P. C. Ford removed it to the federal court, and there entered a demurrer and general plea of not guilty. On April 25, 1938, when the suit came on for trial, the plaintiffs were not ready, the judge refused a postponement and dismissed it for want of prosecution without prejudice to another suit. P. C. Ford then sought to amend his defense by adding an equitable pleading in which he sought a decree removing plaintiffs’ claim as a cloud upon his title. The judge held there was no case in court and refused the amendment. Appeal was taken expressly referring to the judgments of that date.

It is attempted to assign as error also the refusal to reinstate the case by a different judge a month later. But no appeal was taken from that judgment — indeed the formal judgment denying reinstatement was not entered till several weeks after this appeal was taken. The assignment cannot be considered. The dismissal and refusal to amend were without error. The suit was in form one at law. In the federal court it was demurred to and pleaded to as a suit at law. The effort now to treat it as under the equity rules must fail. The dismissal for want of prosecution, though over the objection of the defendant, was regular. The defendant having filed only a defensive pleading, with no sort of counterclaim, could not object. After the dismissal it was too late to file a cross-claim.

Judgment affirmed.  