
    Corporation of San Patricio v. J. M. Mathis et al.
    (Case No. 1488.)
    1. Trespass to try title — Case approved.—The decision in Spence v. McGowan, 53 Texas, approved, which holds that when the sole object of a suit is to determine the location of a dividing line between surveys, and there is no question as to the title to either survey, the parties, under the statutes formerly in force, would be entitled to but one adjudication on the question.
    Error from San Patricio.
    On May 2, 1879, appellant brought suit in the form of an action of trespass to try title against appellee. The real object seems to have been to fix the location of a dividing line between the lands of the litigants. Judgment was rendered for defendant in that suit in May, 1879. Afterwards this suit was brought by appellant against the same defendant on the same alleged cause of action, February 18, 1880. Judgment for defendant below sustaining his plea in bar.
    
      Pat O'Docherty and Eckfort & Newton, for plaintiff in error.
    This being an action of trespass to try title, the plaintiff was entitled .to a second suit, notwithstanding the judgment of the court in the first suit, this suit having been brought within one year from the rendition of the first judgment; and in sustaining the defendants exceptions and pleas in bar, the court erred.
    
      Lackey & Kleberg and McCampbell & Givens, for defendants in error.
    
      [Opinion delivered January 9, 1883.]
   Willie, Chief Justice.

The only question for our determination in this case is, where the location of a disputed line between adjacent surveys has been determined in an action of trespass to try title, and there is no question as to the title to either survey, is the defeated plaintiff entitled to his second suit in order to have another adjudication of the same question ? This precise point was decided in the case of Spence v. McGowan, 53 Tex., 30, where it was held that such second suit could not be maintained.

Our Revised Statutes provide that such suits may be brought only in cases where the first action was begun before their adoption, viz., September 1,1879. The question must therefore soon cease to be of any practical importance. For this reason we the more readily yield our assent to a final settlement of the point in accordance with the opinion of our predecessors in the above cited cause. Regarding that decision as authoritative, the court below could not have done otherwise than sustain a general demurrer to the petition and dismiss the cause, and its judgment is affirmed.

Affirmed.

Associate Justice Stayton did not sit in this case.  