18 Tex. 294 | Tex. | 1857
The errors assigned are :
1st. In sustaining defendants’ exceptions to the plaintiffs’ amended petition.
2d. In sustaining the exceptions to the petition.
3d. In dismissing the petition and rendering judgment against the plaintiff Edward Clegg and his sureties. •
4th. In overruling the motion for a new trial.
The judgments of Varnell and Feeny were against Edward Clegg, one of the plaintiffs, individually, and the petition was amended by striking out all those allegations which impeached the validity and correctness of the judgment, and prayed that the defendants might, be enjoined from collecting said judgments. The petition, as amended, was, in effect, a petition by a husband and wife, or by the husband representing the wife, to enjoin the sale of the wife’s separate property under
Two executions, on distinct judgments, recovered by distinct plaintiffs against the husband, were levied on the property of the wife, and the question is, must she institute a separate suit for injunction against each plaintiff in the executions, or may she join them as defendants, and thus in a single suit settle the question as to her right in the property ?
Judge Story, in his treatise on Equity Pleadings, defines multifariousness to be the improperly joining in one bill distinct and independent matters against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill. In the latter case, the proceeding would be oppressive, because it would tend to load each defendant with an unnecessary burden of costs, by swelling the pleadings with the statement of the several claims of the other defendants, with which he has no con
As an example of multifariousness, it is said that if an estate be sold in lots to different persons, the purchasers could not join in a bill against the vendor ; for each party’s case would be distinct, depending on its own peculiar circumstances ; for the same reason the vendor would not be allowed to sue in one bill all the purchasers, for specific performance. (Id. Sec. 272. ) On the other hand it is said, that a' bill will not be multifarious because it joins -two good causes of complaint growing out of the same transaction, where all the defendants are interested in the same claim of right, and where the relief asked for in relation to each is of the same general character. (Id. Sec. 284.) In Sec. 533 it is stated as the result of the authorities, that where there is a common interest and a common liability in the defendants, and a common interest in the plaintiffs, different claims to property, (if the subjects are such as may without inconvenience be joined,) may be united in one suit. Thus a bill is not necessarily multifarious by reason of its seeking to redeem two distinct mortgages of different parcels of real estate; or of its seeking specific performance of different contracts relating to different parcels of real estate. (12 Metc. R. 323.)
A bill has been sustained by the owner of a sole fishery, against several persons who claimed under distinct rights ; and also by seventy-two underwriters to sustain several actions upon different policies of insurance effected by the defendants upon different ships. (3 Price, 164.) The latter case may perhaps be subject to some question. In Gaines and Wife v. Chew et al., 2 Howard, 619, it was held that a bill filed
In Sec. 539 of Equity Pleadings by Story, the author states as a conclusion from the authorities, that there is not any positive, inflexible rule as to what constitutes multifariousness which is fatal to the suit on demurrer. The Courts have always exercised a sound discretion in determining whether the subject matters of the suit are properly joined, and whether parties plaintiffs or defendants are properly joined or not. (Campbell v. Mackey, 1 Mylne & Craig, 603; Oliver et al. v. Piatt, 3 Howard, U. S. Rep. 411, 412.)
The substance of the rules on this subject appear to be, that each case must be governed by its own circumstances, and whether it be multifarious or not, must be left in a great measure to the sound discretion of the Court.
Defendants ought not to be put to inconvenience 'and expense in litigating matters in which they have no interest; and on the other hand, unnecessary litigation and multiplicity
The rule against multiplicity of suits has peculiar force in our system of procedure. Within reasonable limits it is the cardinal principal as to joinder of parties and causes of action. Even, jurisdictions which are distinct and separate in other States, are blended in our system; and legal and equitable causes of action and grounds of defence may be adjusted in a single controversy.
In the case before us, the plaintiffs in the executions who are made defendants in this suit, are alike interested in every fact which may go to establish or defeat the right of the wife, as against the husband, to the property. Surely a claimant attempting to restrain the sale of his property under execution against another person, is not to be compelled to institute suit against each plaintiff in execution where there is but one common matter in dispute, and that is whether the property belongs to the claimant or to the defendant in the executions. To state the proposition is to answer it. The fact that Feeny is absent in California, and that there may be some delay before he could be cited by publication, is no such unreasonable inconvenience to Yarn ell as to impose on Mrs. Clegg the necessity, expense and trouble of bringing two suits instead of one, when the main object of both suits would be an inquiry as to her right in the property.
It may be said that the question as to the validity of the execution on the part of Yarn ell, is a matter in which Feeny has no interest. Nor has Mrs. Clegg any interest whether the execution be void or voidable or not. The last proposition, which is, in effect, a denial of the right of a claimant of property to impeach the validity of an execution against a third person levied on that property, is, to say the least, questionable. The main inquiry in such controversy is as to the right in the property, whether in the claimant or in the de
The execution of Varnell must be set aside, and he will be liable for the costs of the suit to that extent, yet by cross petition in the nature of a scire facias or action of debt, he may have his original judgment revived, (Erhart v. Oldham, at Austin, December Term, 1856, supra,) and in the meantime, as the plaintiffs have made the issue denying that Clegg, the husband, is the owner of the property, he may controvert the issue and ascertain whether the property be or not liable to execution on his judgment.
The question of the lots being the homestead of husband and wife, or to what extent they may be claimed as homestead, is
As to the point that the petition for injunction is too late, the time prescribed by the Statute for obtaining injunction to stay execution having expired, it is sufficient to say that the Act of 1846, (Hart. Dig. Art. 1599,) has reference to the granting of injunctions for causes existing at the rendition of the judgment, and can have no application to injunctions sought for causes arising subsequent to the judgment. (9 Tex. R. 119, 487.)
In the amended petition, the plaintiffs seek the injunction against the executions principally on the ground that it was levied on the property of a third person, a stranger to the execution. The cause for the injunction did not arise until the levy of the executions, and the case does not come within the purview of the Statute regulating injunctions.
The questions presented in this cause have been discussed as if the rules in Chancery on the subject of multifariousness had binding force and authority in our code of procedure. It is scarcely necessary to say that they have no conclusive force, and will be recognized only where they may be deemed reasonable, and may harmonize with our system and the principles and rules of our pleadings and practice. A prominent feature in our system of procedure is, that litigation between parties should be determined in a single suit. If this cannot be done without oppressive delays or expense, or such confusion as would occasion injustice, the suit should not be dismissed as to all the parties or causes of action, unless the plaintiff refuse to amend so as to obviate the difficulties, and retrench the multifariousness of his pleadings. The suit, if there be a good cause of action against any defendant, should
We are of opinion that the demurrer to the amended petition should not have been sustained, nor should the petition, as amended, have been dismissed. The original petition was, it is believed, obnoxious to the objection of multifariousness.
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.