139 S.W. 768 | Tex. App. | 1909
We think this case distinguishable from the cases of Cardwell v. Masterson,
In the case before us, however, if we were correct in holding that the title to the mules alleged to have been converted by the defendants in error passed to plaintiff in error at the trustee's sale discussed in our original opinion (and this position is not assailed in the motion for rehearing), then Lane thereafter had no interest or equity in the property, and plaintiff in error, having title, was without any lien. Moreover, in this case there is a judgment in favor of a special plea, which not only alleges that plaintiff in error was without lien, but also distinctly charges that "the defendant Lane is only sued herein for the sole and simple purpose of attempting to give this court jurisdiction over the persons of defendants Mathie D. Rhoades and J. W. Webb." At best, therefore, plaintiff's cause of action against Lane was for a balance due on a contract, Lane's note, and against Webb and Rhoades for conversion, a tort. The two cannot be properly joined at common law, as plainly indicated in the Cobb v. Barber case relied upon.
*883We think the motion for rehearing must be overruled.