
    AMERICAN SURETY CO v. THACH.
    (No. 6093.)
    (Court of Civil Appeals of Texas. Austin.
    June 4, 1919.)
    Dismissal and Nonsuit <§=>79 — Want of Appearance — Judgment on Merits.
    Where a plaintiff fails to appear in person or by attorney, and where there is no cross-action on which defendant is entitled to invoke a trial, the only judgment which should be rendered is one dismissing for want of prosecution, and court cannot render’ judgment on the merits after sustaining exception to material part of petition.
    Error from Milam County Court; W. G. Gillis, Judge.
    ' Action by the American Surety Company against J. T. Thach. Judgment for defendant, and plaintiff brings error.
    Reversed, and cause remanded.
    M. G. Cox, of Cameron, for plaintiff in error.
   KEY, C. J.

The American Surety Company brought this suit against J. T. Thach, seeking to recover the sum of $400 and interest, alleged to be owing by the defendant because of the fact that the plaintiff, as surety for the defendant, had incurred liability to that extent on account of the default of the defendant.

The defendant’s answer contained a number of special exceptions and general denial, but contained no plea asking for affirmative relief. The judgment contains recitals to the effect that, when the case was regularly called for trial, the plaintiff did not appear, but the defendant appeared and announced ready for trial, whereupon the court sustained the defendant’s third special exception to the plaintiff’s petition, and thereafter heard evidence upon the merits of the case, and rendered judgment thereon to the effect that the plaintiff take nothing by its suit, and that the defendant go hence without day and recover from the plaintiff all costs, etc.

The plaintiff has brought the case to this court by writ of error, and we sustain the assignment which complains of the action of the trial court in sustaining an exception to the plaintiff’s petition, and thereafter proceeding with the trial of the case upon its merits, and rendering judgment for the defendant.

Where a plaintiff fails to appear in person of by attorney, and where there is no cross-action upon which the defendant is entitled to invoke a trial, the only judgment which should be rendered is one dismissing the case for want of prosecution, and the court cannot properly render a judgment upon the meTits. Burger v. Young, 78 Tex. 656, 15 S. W. 107; Drummond v. Lewis, 157 S. W. 266, and cases there cited.

The special exception was addressed to an essential part of the plaintiff’s petition, and when the court sustained that exception, no cause of action was left for trial, and the case should have been dismissed. We deem it unnecessary to express any opinion as to the correctness of the court’s ruling upon the exception, as the plaintiff can easily amend and make the petition more specific in the particulars complained of. But, after sustaining that exception, the court should have dismissed the case, and it committed material error when it proceeded with the trial and rendered judgment for the defendant, and oh account of that error the judgment is reversed, and the cause remanded.

Reversed and remanded.  