
    FEDERAL ROYALTIES CO., Inc., et al. v. McKNIGHT et ux.
    No. 3151.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 20, 1934.
    Rehearing Denied Jan. 10, 1935.
    E. E. Sanders and James &.Conner, aE of Eort Worth, for plaintiffs in error.
    Paul Moss, of Odessa, for defendants in error.
   PELPHREX,'Chief Justice.

This suit was instituted by plaintiffs in error on October 12, 1933. Citation was served on defendants in error requiring them to ap: pear at the November term of court. Defendants in error answered by a general denial and a plea of not guilty. By agreement of the parties the cause was continued, until the March term, 1934. At the March term, 1934, plaintiffs in error failing to appear, the court rendered judgment that they take nothing by their suit and that defendants in error recover the costs from them.

Plaintiffs in error have brought the cause to this court by writ of error and ask that the judgment be reversed because the trial court was without authority to render any judgment, under the facts here disclosed, except one of dismissal.

With this contention we must agree. 15 Tex. Jur.,- § 39, p. 283; Burger v. Young, 78 Tex. 656, 15 S. W. 107; Parr v. Chittim (Tex. Com. App.) 231 S. W. 1079.

The position taken by defendants in error that having prayed in their answer, “Wherefore defendants.pray judgment that plaintiffs take nothing, and that they go hence with their costs without day,” they were seeking such affirmative relief as would authorize the court to render judgment against, plaintiffs in error for the possession of the land, is untenable.

For the error of the court in rendering judgment on the merits in favor of defendants in error, instead of dismissing the cause as to them for want of prosecution, the judgment must be reversed and the cause remanded, and it is so ordered.  