Marshall v. Garcia

OPINION ON MOTION FOR REHEARING

Appellees in their motion for rehearing state that “the Court is certainly correct in holding that if one alternative count does not state a cause of action, it does not affect the other which sufficiently sets up an independent cause of action.” Appellees argue that the plaintiffs’ petition did not sufficiently set up any cause of action except one for forfeiture and in any event, the petition did not put appellees on fair notice of any cause of action except that for forfeiture.

The plaintiffs’ (appellees’) petition reads in part as follows:

“That on the day and year last aforesaid Defendants unlawfully entered upon the *519premises and unlawfully withhold from Plaintiffs possession thereof, to their damage in the sum of Forty Thousand ($40,000.00) Dollars.
II.
That the reasonable annual rental of said land is Five Hundred ($500.00) Dollars.
that Plaintiffs have judgment for title and possession of said above described premises, and that writ of restitution issue, and for their rents, damages and costs of suit . . .”

This is language which asserts a trespass to try title action. It is clear to us that the appellees, themselves, recognized that this was a cause of action in trespass because in their answer they plead “not guilty” — artful words often used in an answer to a suit in trespass to try title.

We have carefully considered appellees’ motion for rehearing and the same is overruled.

Overruled.