
    Agnes C. Cissel et al. v. John W. Lewis et al.
    Decided February 16, 1899.
    1. Judgment—Several Defendants.
    Judgment should not be rendered in favor of all the defendants in trespass to try title on a plea in reconvention by only one of them alleging ownership of the property.
    2. Same—Trespass to Try Title—Beconvention.
    Judgment can not be rendered in trespass to try title to land on a plea in re-convention by a defendant which does not show that he seeks to recover against the plaintiffs any part of the land sued for by them.
    Error from Jefferson. Tried below before Hon. Stephen P. West.
    
      O’Brien, Bordages & O’Brien, for plaintiffs in error.
   GARRETT, Chief Justice.

This was an action of trespass to try-title brought by the plaintiffs in error, Agnes 0. Cissel and others against John T. Lewis, Henry Small, Joshua W. Roberts, and Henry T. Davis, the defendants in error, for the recovery of certain lots of land in Cochran’s addition to the town of Sabine Pass, being also a part of the Dennis Gahagen league. The petition was in usual form. All of the defendants joined in an original answer filed December 17, 1896, in which they demurred to the petition, pleaded a general denial, and not guilty. On May 13, 1897, the defendant John T. Lewis alone filed an amended original answer which, in addition to the pleas stated above, was a plea in reconvention against the plaintiffs for the recovery of certain described subdivisions of the Dennis Gahagen league. The plea does not show that the land described in it embraces the lots sued for by the plaintiffs. It may embrace them, but there is nothing in the plea to show that it does, either in any averment or in the description given. Afterwards when the case came up for trial, as shown by the recitals in the judgment, the parties appeared and announced ready for trial, waived a jury, and submitted the maters in controversy to the court, “whereupon plaintiffs declined to further prosecute their said suit and elected to take and demanded a nonsuit and say nothing in bar of defendants’ cross-action.” and the court proceeded to render judgment that the plaintiffs take nothing by their suit, and that the defendants John T. Lewis, Henry Small, Joshua W. Roberts, and Henry T. Davis upon their cross-action recover of the plaintiff the land described in the amended answer of John T. Lewis, the description of which is fully set out in the judgment.

It was error for the court to render judgment in favor of all of the defendants upon the defendant Lewis’ plea in reconvention. They were not parties thereto, and there was no pleading to support the judgment in favor of any of the defendants except the defendant Lewis. Dunlap v. Southerlin, 63 Texas, 38.

For this error the judgment of the court below must be reversed, and as the plea in reconvention of the defendant Lewis does not show that he seeks to recover against plaintiffs any part of the land sued for by them, it will not support a judgment in his favor to be rendered by this court, the cause will be remanded.

Reversed and remanded.  