Tally v. Thorn

Citations

• 35 Tex. 727

Syllabus

<p>1. In an action of trespass to try title and for damages, the defendants filed an answer of not guilty ; but at a subsequent term a judgment purporting to be by default was rendered against them, reciting that though they had answered, yet they came not when called, hut made default, etc. A jury of inquiry was impanneled merely to assess the plaintiff’s damages, and returned a verdict that they found “for the plaintiffs, damages at three thousand one hundred and eighteen dollars and thereupon the court below rendered judgment that the plaintiffs recover the land, and also the damages assessed by the jury. There was neither evidence nor verdict respecting the title. Held, that it was error to render the judgment against the defendants by default when their answer was on file. Held further, that it was error to render the final judgment either for the land or for the damages assessed by the jury. The case does not come within the rule of Hopkins v. Donaho, 4 Texas 337, and Pierson v. Burney, 15 Texas, 272; inasmuch as in the present case the answer was not only on file, but was brought to the attention of the court, as is apparent from the recitals of the judgment rendered.</p> <p>2. A plaintiff in trespass to try title must first establish his title to the land, before he can recover damages in respect of it.</p>