Peck v. McKellar

Citations

• 33 Tex. 234

Syllabus

<p>1. On the trial of a suit for land the plaintiff’s title deed was excluded as evidence for the reason that the notary public, in certifying its execution and acknowledgment, had nsed the seal of the county court instead of his own notarial seal; and by its exclusion the plaintiff was forced to ask leave to take a nonsuit, which leave was refused by the court below. Held, that it being apparent that the wrong seal was used by a mere mistake which the notary could rectify, and it further appearing that no ' negligence was imputable to the plaintiff, the nonsuit should have been allowed, and it was error to refuse it. Held further, that the costs resulting from the nonsuit should, under such circumstances, abide the result of the suit.</p> <p>2. The right of a plaintiff to bring a second suit of trespass to try title constitutes no reason why he should be precluded from taking a nonsuit in his first suit.</p> <p>■ 3. A plea iu reconvention does not debar a plaintiff from taking a nonsuit; but on the elaim in reoonvention the cause can proceed to trial and judgment, notwithstanding the nonsuit of the plaintiff. (On motion for rehearing )</p> <p>á. Answers of a defendant m trespass to try title, alleging title in the de- . fendant and setting forth reasons to show such title, are not pleas in re-convention ; but only amount to a plea of not guilty. (On motion for rehearing.)</p>