*1 Tes.) - IRR. CO. LEDBETTER EDINBURG (247 i.W.) — Judgment <©=3715(1) be the absence 5. Issue must illness have know must same not the same: when of action attorney Skoults, other inform not did of his attorneys in two suits Where the causes of action representing present him different, must be the same the issue question. testimony in bar both cases in order to tbe second suit. complaining assignments action overruling motion of the court adjudicated, Judgment <©=3713(2)Anything 6. — overruled. might adjudicated, or be heard cannot which heen have again. is affirmed. adjudicated, inor Whatever has been once parties might pending a suit adjudicated pleadings, can- have been not under the again. heard be LEDBETTER EDINBURG IRR. al. v. CO. Judgment 7. not barred <©=>736—Water (No. 6789.)* et al. when issue not raised and determined. receivership Where, proceedings ancil- (Court Appeals San Anto- Civil Texas. lary mortgage ir- to on an the foreclosure of a Rehearing, On nio. Nov. 1922. rigation system, no issue de- was raised and 3, 1923.) Jan. regarding termined existence or party, rights in favor of a 1. and water courses Waters <©=232—Provi- claiming him, not such those against irriga- barring sion decree claims barred the decree. system apply up not to tion unless held set to to suit. Judgment Subject 8. collateral at- to <©=<505— ancillary receivership proceeding adjudicating In a tack whan matter not within irrigation mortgage an of a the foreclosure issues. system, provision of a notice a decree receivership pro- In so far as the decree in persons character all and claims ceeding ancillary to a of mort- foreclosure ordering providing intervene, them to irrigation system party’s gage water an cut aoff be would that otherwise such claims did, subject rights, if it it was void and apply finally concluded, intended not attack, plead- to collateral where there was no suit, bring before but matter, respecting or issue i outstanding disposition all final court claimants, a and unincumbered free < n =1073(3) Appeal 9. and error —Defendants passed. be title adjudication legal injured by because title not re- to Hand another defendant. courses Waters and water <©=232—In 2. foreclosure, anciiiary ceivership claims mortgagee Defendants other than a of land b'y only against proper persons bo barred third could injured by adjudication held in favor of process. pleading party claiming though legal rights, a title ancillary receivership proceeding mortgagee. been in the a mortgage foreclosure of ’the provision system, for notice to appearing the decree Appearance Party 10. is be- <©=312— any character, parties having pro- claims and bound to fore ceedings, notwithstanding take notice that, presented, providing claims unless leave to withdraw par- finally only concluded, pleadings. related be estate, outstanding claims with ties party voluntarily appearing be- A once estate had claims not to purposes for all until ul- fore the court timate others, otherwise which barred disposal compelled case, process. pleading proper than subsequent proceedings in notice take though given ease, leave withdraw its only Judgment open 3. <©=485—Voidable pleadings. apparently rec- valid on when attack to direct invalidity ord, record. shown but void if — <©=247(2) water courses 11. Waters and which, though really void, A car- enjoin irrigation authorized held Court validity, record evidence of is void- ries on furnishing company own- to land attack, only subject only, and to direct able changes in/System. until ed it and others proof one bears on record but its own under irriga- Where a contract for the sale anof invalidity void, and attacked system irrigated and land tion thereunder re- circumstances. and all quired grantee to finance and maintain the adju- Judgment <©=3584, former 720—When necessary improvements and make defense. dication a purchase watering price certain lands until the adjudication may provided fully paid, A former introduced no other when the second suit is defense between lands should receive water contract or water as the privies, upon consideration, right payment, same full or as in until same held action the first authorized Yernon’s cause complete Sayles’ 5002e, art. Civ. St. arts. 5092b and a full defense Ann. case Supp. 1918, bill, suit is Ann. Civ. St. or where the second based right, and Yernon’s whole action, 5002b, enjoin upon question, in issue from fur- different distinctly thereby put put irrigate lands, nishing issue fact water to directly ground making impossible as a the lands under determined recovery in suit. the first the contract. Digests Key-Numbered topic KEi Indexes <g=sFor cases see -NUMBER granted February 21, * Writ oferror *2 247 SOUTHWESTERN REPORTER nn =>244—Grant Brown, Bliss, Edinburg, 12. Waters and water Geo. courses P. Antonio, of Don A. permanent right of create water not to held Seabury, George Taylor, of San Brownsville, & of system. on easement canal Roy Mission, Buckley, and of (cid:127) Though mortgage ¿ompany another and appellees. irrigation equitable remained the of an* owners system conveyed irrigation company, a an COBBS, J. This was a suit nature the grant tion by irriga- mortgage company to the by of a suit interesse suo instituted Led- -A. permanent right held of a water al., appellee, similarly better et and 11 others system. not to create an on canal easement situated, against tbe 13. Waters and water courses <®=^232—Water Company, Company, the W. E. Stewart Land accounting users held between not entitled to Mortgage Company, Farm Stewart E.W. irrigation company persons. and third Stewart, Hidalgo Company, Company, Land solvent, irrigation company an Where (cid:127) San Antonio Loan & Trust ready, able, willing and owners to furnish American Company, National Insurance rights of water all the water purely irrigation land, equity James Hoit. the wa- wanted for the of their one in users, part ter company, rights who were stockholders owners of with water an were not have account- entitled to irrigation system Edinburg of Ir- irrigation company persons rigation Company Hidalgo county, Tex., it, controlling as in the case of stockholders’ by injunction ap- for pointment relief and for bill trust fund. charge of receiver take of property injunction against Rehearing. Appellees’ On Motion for rights issuance of new water and new water <®=>50(l) joinder when 14. Action —Ruie contracts lands controlled litigation- point said Stewart common of decisive stated. ' Hidalgo interests. The Land litigation point decis- If common of though matter, San Antonio Loan & Company, Company, Trust the interests ive of unconnected, but all arise out of the entire plaintiffs, are or the liabilities of American National Insurance defendants except question, joined common Hoit, claim, J. W. because of some transaction, same right, title, irriga- interest and to- said joined plaintiffs and all defend- when system prayed adjudicated. By tion to be right, claim of ants interested amendment ened the cause of action broad- sought plaintiff is of and same the relief changed by original amended general character. petition filed, upon which, and other amend- <®==>39(I)Multiplicity Equity ab- of suits — parties, ments and filed horred. thirty- case went trial. One hundred and multiplicity abhor of suits The courts parties, similarly situated, claiming one to be subjects properly when all the matters are joined plaintiffs suing in their own behalf equi- jurisdiction of in the same the'court similarly behalf all others sit- complete proceeding, de- relief should be table creed. They, together plaintiffs, uated. with the separate damages their against sued also <®=o39(3) Equity parties permitted —When Edinburg Irrigation Company equitable join relief, compíete in suit for granted by awarding brought the same suit. relief should These demands damages. plaintiffs on behalf of for amounts parties, ranging $24, smallest, con- $5,664, Where numerous entitled from irrigation company, tract water from largest, partial based total or join permitted one sup- failure on account of insufficient water against of new relief the issuance water ply lands, to other relief, complete and were found entitled crops year grown various last tbe should have been admin- Belief year 1921, others in situated in dif- determining awarding dam- istered even parts Hoit, Hammond, ferent ages son of plaintiffs by various rea- sustained Edinburg tracts, irrigation company substantially past which failures com- perform alleged duty, jts prise system. should not all the lands under the canal bring separate have been driven out crops damaged, kinds, various especially suits, where and distinct usually grown such as are cultivated and the defendants were nonresidents. valley, including alleged the arise out conveying orchards writing of the breach of Appeal Court, Hidalgo from District Coun- between the ty Boone, Judge. ; Hood Edinburg Irrigation Company and the Suit A. Ledbetter others furnishing water, pleading Dot ing hut no claim- Edinburg Irrigation Company and tbe E'rom a others. statutory right independent to water part granting tbe pleaded. contracts for, appeal. defendants sued Affirmed 1-Ioit, independent J. of his defensive part part rehearing. hnd remanded pleadings, sought by cross-bill Kennerly, Hill, Jr., Hill, Lee & alleged Geo. A. Fleming, Houston, ap- rights appurtenant lands, part T. Richard to the pellants. part owned to a he he topic Key-Numbered Digests see otter cases ana lr£ <S=sEor KEY-NUMBER all and Indexes Tex.) IRR. CO. v. LEDBETTER EDINBURG- S.W.) <247 description value excess, tlie land. The substantial vendor’s lien *3 equitable Hoit, prayed for, W. as ages relief but the tem of said including any alleges parties’ plaintiffs. his or other He to claim dam- for those of including prejudice litigate Irrigation Company, Edinburg was denied without to said proceeding, except his it some other plaintiffs, denies the existence lands of thereof, adjudged, rights priority and as the have been water refuses to de- creed, disposed up canals or dismissed with its or connect otherwise of. provided up to It also from decree: had built canals laterals he his he had said pumps third lift lands and own jurisdiction, “That the as court retains such irrigation acquired for the better may lawfully reserve unto itself notwith- high parts standing such motions and decree, as too of his lands lie to hear and determine petitions may properly gravity as of the flow out watered brought before it after the of ad- any installation canals, generally to furnish and refuses pumping irrigation ditional units and other fa- prayed He to the lands. water whatever said changes in ex- cilities after other material rights established and for to relief water have his isting conditions, for extension of w'ater mandatory injunction compel rec- beyond service the limits now decreed.” ognition, ir- water said for service and Irrigation Edinburg Company having rigation company The lands. In the to his said willingness granted plaintiffs Hoit and declared to furnish judgment relief is to J. (Ledbetter al.) supply et a it resulted sufficient water the the relief for the so far as proper pumps at and time for the installation of of the improvement sup- system, ready facilities, being and lands under the and other canal water, so, unnecessary etc., ply do all able to renders it denieu to them but appoint, injunction any mandatory damages a receiver or issue prayed equita- mingled Company All as their suit for. costs with adjudged against Edinburg Irrigation Com- ble -relief. pany, gage Company, .Stewart, jury judgment Upon W. E. a Stewart Farm Mort- the answers receivership, entered, denying E. and W. Stewart Land Com- was mandamus, pany. part equitable relief and a of the Edinburg Irriga- assignments prayed We shall first answer the and that tion lants, complain for. had appel- propositions Company Stewarts, appellants. raised and that, having judgment, It a W. Hoit seek contended James and party judgment equi- been a awards the suit the district court because reversal table relief to J. TV. county Hoit, of Cameron entitled water No. whose assailed, part a American National Insurance of which also runs et al. relief Valley al., & that of Canal et favor A. Ledbetter the others who v. Reservoir judgment being plaintiffs, cross-assignment domestic who also on court jurisdiction, collaterally general judgment cannot of error to reverse be- be in seek suit, brought granted district cause the does not attacked county. enough. court, Hidalgo trial extend far The that, exceptions misjoinder, cause No. It is contended 3073 of sustained refused County being the district court of Cameron to consider individual claims asserted receivership ancillary damages. proceeding, to the mortgage system, quite on said It foreclosure of wherein the will be difficult to embrace this opinion court, subsequently space, entering in a short all the discuss adjudicated system, attempt order various contentions do. The of sale we shall adversely Hoit, him, transcript pages. contract of water contains 614 proceeding, sep- however, col- he cannot statement of facts embraced two laterally together attack the decree and order of sale arate volumes Nos. 1,357 pages. Edinburg in No. 3073 confirmation. contain said cause and its brief Irrigation Company printed was, on the trial that shown contains 162 by any person seeking pages. al., ap- of A. filed The brief Ledbetter no pass pellees, printed pages, Mr. from Hoit or him the contains 131 and brief recover existence superiority appellee, printed Hoit, or the of or the contains 64 J. W. priority pages. water of his or that of any persons. No trial was held on that is un- While usually lengthy prolix, issue, leaving cap- nor was there evidence introduced out raising No. 3073 the issue in said cause tion the numerous contracts, special given regard charges an- it contains seeking any.relief prayed jury to have same nor swers of irrigation system pages give questions to have the sold canceled takes about obligation answers, pages contractual of serv- more for de- divested rights. cree, pages 24 more additional with these 247 S.W.—22 247 SOUTHWESTERN REPORTER
burg
rem to
ing
of all
heretofore
ting up
estate which has
fore March
rights
cree would be
burg
W. E.
to
scribed in this
Reservoir & Canal
that decree was
before
rigation
of
any
Supreme
quantities
lands
ground
notice was not intended for
intended to
disposition-
membered that
lost
when the clause of the
Hoit’s
in clause 94 of
ties
suit
nor
him,
peared personally therein,
rights
intended
lands
irrigation
of Cameron
permanent
owner of the vendor’s
curing
such
record in
that Hoit’s water
supplied
closure
which Hoit
of
of the district
“All
There
Tlie
[1]
n
Appeals
the decree was:
the
persons having liens, debts,
claimants
property,
court
provision.
required
intended
character whatsoever
appellant
whose
his
Town-Site
claims.
But
Sprague,
not so
transactions
persons, corporations,
decree
of Hoit were
*4
rights.
such
purchased
& Construction
is
heirs
in
Court as
bring
as
the same case
he
it was
attack
ran with
than those
for the
in 235
perpetuity
court
9-, 1917,
nothing startling
county
notices
preservation
bring
directing
say
had
respective
presented prior
in
so
finally
decree,
A
or
before
Rio
Hoit was a
court of Cameron
The effect
No. 3073 of the district
intervene
the
Co. v.
more on this
the decree.
be
careful
claimants,
a
against
sold,
claimed
right by
to leave it
are there
before the court for final necessary
S. W. 1088. The
court
rights
assigns,
purpose of
leads us to the
biud
been so
Company,
Grande
party
comes from the
aforesaid cause No. S073
otherwise
concluded.”
adjudicated.
the said decree of
canceled
the court
ultimate
wMcli
with water
or either of
notice
clear and freed
* * *
lien
adjudication
proceedings
tracts of
Paschen,
title,
parties
appurtenant
decreq
Company,
and affirmed
examination
rights by
claims
defendant
by appellant,
in which
John
of that
party
to have
river
interested
obligations
for the
Hoit
the Commission
disposed of,
unnecessary
to issue to
and associations
fully
this
to the final de-
preservation
subject.
It must be re
the Lomita Ir-
suit,
or unusual
parties
disposition
irrigating
large portion
may pass
were ordered
not'properly
or claims of
Closner,
property
through
claimed
them,
cause,
notice
county,
conclusion
The
the Edin- disposing
outstand
discussed
the
on or
the lands
claims or
annulled,
language
all water- tion than that
litigated,
language
sufficient
entitling
inserted
purpose
to the ing
as the
Valley
Edin
in se-
terms
quasi
court
main
in or
fore 42 Tex.
such
Hoit was
par
suit
set- ments
be-
de-
ap
the
the tate
iu
in and
heads,
nullity,
former
parties
should never be termed
period
ment.
the
may
ment. Such must be the case
fully
doctrine
vol.
which class of cases
complete
parties
tradicted
that under this rule
same cause of
ment of
collateral
first is
by
has been no such service.”
its record the
words,
cumstances,
to collateral
question
ent cause
cisions,
be so barred
ing
one is held
right;
the decree.
other
evidence of
able
not,
Chief
though really
outstanding
“There
(1)
(2)
[4]
Going
[2,
attack,
as the extent
quantity
evidence
purchaser
p.2,
voidable
a collateral
reciting
attempt
be
Where
3]
Where
decree,
Justice of
principle
viz.:
it is held
has
property.
it must
if it
Supreme
voidable;
adjudication may
or
a distinction
record,
The notice
or their
jurisdictional
process.
shown in
applied,
cannot be denied or
by
defense
is, according
classed
of the
proceeding.
their
English
case
be attacked under
direct or
had he would have been bound
estate —not
subject only
been
Hoit’s
validity,
wherever it
estoppel.'
There is no res
personal
present proof
attack,
otherwise than
proofs
as
action,
void,
to cut out Hoit’s
a free and
record,
action,
necessarily
against others,
will be
given by
privies
of the conclusiveness of
its record of its own
this
second suit
second
record,
that
Court of
attack
extending
distinction between a void
appellants
privies
classified,
241,
There is no
the Pasehen
law,
is intended to
any judgment
bill
between
of its own
carries in its record the
with
we
and one
latter is
facts,
shown
collateral,
service which is not con-
but where to numerous Texas de-
It will be
void,
we find
Black
suit
arranged
presumed
to which
when
find no better defini
plea
to direct
upon
as a branch of the
presents
rights,
the
be
based
recitation
is based
outstanding
plea
unincumbered
be a voidable
aliunde to show its
in Dunn v.
the defense of a
claims
if not contradicted
between
when
introduced,
a
questioned
the.first
through
insist. On the
adjudicata,
is
present
awith
any
which,
judgment which,
record
a
void. In- other
invalidity.
United
no issue
is a
upon
whenever
concerned,
proper
on the
merely
Case,
reality
readily
the defense
not contain-
Judgments,
to be
itself. The
attack;
and all cir-
whole bill.
permanent
in a
upon
that:
full
bears,
decision
requires
given
showing
learned
Taylor,
subject
a
States,
the es
differ-
claims
supra,
in
plead
right,
tried,
judg-
judg-
void
judg-
judg-
long
true,
if it
seen
two
it is
title
The
any
or
so
Tes.)
CO.
EDINBURG IRR.
v. LEDBETTER
33»
s.w.)
(247
question,
put
adjudicated,
the second
fact
issue
cannot
heard
directly again.
distinctly put
issue
ground
Wells,
determined
of re-
case
Foster v.
decided
covery
Supreme
opin-
in the first suit.
Bates’ Federal
Court
Texas in
Equity
being
Procedure, pp. 330-340;
ion
Lipscomb,
Black
rendered
Justice
quoted
Judgments,
p.
approval
following
vol.
with
language:
In the case of Southern
Railroad
Pacific
States,
Sup.
Co. v. United
168 U. S.
Ct.
respect
judgments, properly
“With
call-
so
Supreme
42 L. Ed.
Court said:
ed,
e.,
i.
those solemn decisions' of
courts
justice,
right-
made in the
exercise
their
general principle
numer-
“The
announced in
jurisdiction,
giving
ful
after
right, question
ous cases is that a
tinctly put
fact dis-
opportunity
heard,
upon
to be
due deliber-
directly
in issue and
determined
law, proceeding upon
ation—the
the maxim-
competent jurisdiction,
ground
court of
publicae
litium,
that interest rei
ut sit finis
will
disputed
subsequent
recovery,
of
suit
cannot be
regard
rectly
points
them as
conclusive
di-
privies;
between the same
them,
necessarily
involved in
deter-
if
and
action,
second suit is for a different cause
rendering
tribunals,
mined. And whether the
right,
or fact once
them,
general
limited,
pow-
are clothed with
must,
determined
or their
tablished,
as between the same
er;
erwise,
whether
are courts of record or oth-
privies,
conclusively
taken as
es-
long
*5
makes no sort of
So
difference.
judgment
long
first
so
as the
sphere
as
act within 'the
which has been-
suit remains unmodified.”
adjudications
assigned,
the
binding upon
parties,
in all future controversies relat-
This rule
law
this
the established
is
ing to the same matter.”
state,
supported
long
a
line of de
is
court, speaking further,
Wells,
104;
said:
cisions: Foster
4 Tex.
Weath
v.
Nutt,
Mays,
388;
v.
Tex.
Hassell v.
ered
4
general proposition,
judgment
“The
that the
Chadoin,
644;
265;
14 Tex.
McGee
30 Tex.
v.
possessing competent ju-
or decree of a court
risdiction,
135;
White,
Philipowski
Bledsoe v.
42 Tex.
shall be final as to the matter de-
termined,
608;
cannot be controverted.”
Spencer,
Missouri
Tex.
Scherff v.
v.
63
Co.,
473,
39,
Pacific
S. W.
R. R.
81 Tex.
17
Mays,
In the
v.
case Weathered
4 Tex.
Rep.
Gano,
828; Silliman
90
26 Am. St.
v.
388,
judgment
held that a
former
559,
391;
645,
S. W.
W.
Cas
Tex.
39
40 S.
parties,
13;
sidy
160,
Kluge,
12
v.
Tex.
S. W.
73
grounds
litigated
new
of the
action
been
had
Flippen
Dixon,
423,
803,
83 Tex.
18 S. W.
v.
might
been,
was conclusive between
653;
Rep.
McAninch,
29 Am. St.
Freeman v.
claiming
those
under
922;
App. 644,
6 Tex.
W.
Roberts
Civ.
24 S.
interposed
them,
complete
a
bar to fur-
Johnson,
Gurley,
134;
v.
Tex.
Hanrick v.
48
litigation,
long
judgment
aside,
ther
as
so
that
re-
or re-
480,
347,
119,
93 Tex.
54 S. W.
55 S. W.
56
force,
mained
full
not set
McGrady,
135,
330; Monks
Tex.
S. W.
v.
71
;
adjudicated
versed that
the matters therein
Boykin
617;
(Tex.
v.
8
App.)
Rosenfield
Civ.
S.
adjudicated,
or that
have been
could'
323;
Land
S. W.
Cook v. Carroll
24
into,
again
inquired
not
suit
another
be
Co.,
326,
App.
&
Tex. Civ.
25 S. W.
Cattle
6
and the conclusive character of the former-
1034;
Harvesting
v.
Ma
Carson McCormick
judgment
by
is the same whether the trial be
Co.,
App.
18 Tex. Civ.
44 S. W.
chine
jury.
the court or
These cases
Mayfield
406;
Carver,
Land Co. v.
Tex.
27
present
have been followed down to the
time
216;
Ford,
App.
66 S. W.
Walsh v.
Civ.
line
of unbroken decisions.
App. 573,
27
Civ.
Stuart
Tex.
In the
of Carson
case
v. McCormick Har
Bros.,
App. 530,
Tenison
21
Civ.
Tex.
53 vesting
Co.,
Machine
18 Tex. Civ.
S. W. 83.
406,W.
44 S.
the court said:
[5,6] Admitting
the former suit
interposed
“The same defense is
present
here
as
and in
suit
thb cause of action
ineffectively pleaded.
was then
While the
different,
disputed
it cannot be
that the
of action
are different the matter of
issue made
must be the
property
same,
title to the
referred to
cases,
disputed
same in both
it
cannot be
judgment settling
ques-
this
and the
tion of
must be
identical
are the same so
far
this
from,
title,
appealed
not
been
appellee
presented
is concerned. The issue
regarded
adjudicata upon
res
this
cases,
question.”
both
and the issue that
is decisive
cases, must,
short,
both
be whether or
Eccles,
case
Tadlock
20 Tex.
permanent
right
not the
to water
Hoit
791, 73 Am. Dec.
the court said:
fully
pleading,
land were
involved fully litigated
disposed
principle,
of in the final
“There is no better settled
than-
fully
that
petent
decree of a eourt of com-
decree. These issues
deter
jurisdiction
directly upon
point,
in the trial
mined
case
Cameron
necessarily involving
ques-
the decision of the
county, and under the authorities cited we tion,
parties,
is conclusive between the
and'
think it well settled that whatever has been
privies, upop
coming
their
directly
the same matter
adjudicated,
pending
once
or which
ain
action,
collateral
in>
pleadings
between the same
under the
competent juris-
the same or another
court
(Tex.
REPORTER
SOUTHWESTERN
247
diction.
til reversed
ing
Cameron
questions,
lief
well and
tribunal,
to re-examination.”
or doubted.
appears
judication
cut
that cuts
system,
ter
subject
issue would
lands
supra;
ford
v.
Am. St.
W.
107
wood
the
of
676-678,
term, not
“in
ing
canal
contracts, specially
shown that said
Irrigation Company
that
for the American
See, also,
thereto a
pany,
tract of sale dated
basis of his
tbe
his water
the
furnishing
fied
pany
J.
quired
[7,
J.
[9]
Simpson,
irrigating
that decree
for that
Mr.
part
him off because of lack of
purpose
proper operation
he has
that
of his aforesaid water
W. 1-Ioit
Edinburg Irrigation Company
8] From what
company,
would never
approved by
and San
system
him
listed
existence
Hoit’s water
issue
record in
Collins
that
McDonald,
its
parties,
Cotton
prior
Glasscock, the
Rep.
from the
*
16 W.
would
had
county,
firmly
uniform water
solemnly
him off
collateral attacks.
yet [officially] published.
in favor of
rights
F. Williams v. Borchers
owning
San Antonio
S.
* *
purpose.
raised
company,
rights,
jurisdiction
n
* pleaded
in fair
370; Martin
175 S.
said lands
J.
appeal
v.
appellee
v.
assuring
Antonio Loan
still
then be
Exhibits
established
Tex.
App.) 166 S. W.
preservation
Miller,
is free
and in accordance with
No.
Rhea,
them
under this
granted.
lands
If
in this case
contract
adjudicated
88 Tex.
submitted to
record there
National
August 15,
we have
rights.
and
n
decision
referred
W.
remain,
or annulled
an end of
order
Company,
his contract
thereof for the
its
This is
is the one under
and
decree,
Hoit or
appellants’ insistence
If it
determined
attorney
Hoit’s
676; Lester v. Gate
under
contract was drafted
106 Tex.
Loan
alleged
Mabee
void, and
maintenance
customers,
A
accepted
'
and
15 S.
that
Tex.
v.
district
accordance with
and
Insurance
Dunn v.
decided
said,
anything
into
Burns, 80
permanent wa
sale
and
n rights
&
and in
litigation; and
& Trust
subject-matter
W. E.
1919.”
conclusive
condition
rendering
from the
342 proper, proper equitable .sought done in because cases the courts favor interest, mutuality and insertion of and the determination of a clear there was necessary prevent proof matters in to sustain one and the same suit to the character multiplicity. 294; Clegg Varnell, all the action was mutual 18 Tex. cause of v. practical Osborne, 390; Keowne, relief would plaintiffs, 60 Tex. Love v. Hill v. 58 Tex. App. 559, 191; Herring Mason, against parties. v. Tex. Civ. run 17 largely joinder 797; a matter 43 The S. W. & Orendorff Parlin Miller, App. trial court under Co. 25 for the v. Tex. Civ. 60 S. W. discretion 881; App. to determine. Browne, of each case circumstances Gulf & v. Civ. 27 Tex. Co. Ice, Surety Water 341; Co., Atascosa National Co. v. 66 S. W. v. Fruit Kemendo App.) Light (Tex. 222 S. W. & Bain v. Germane of causes of overruled Civ. Co. App. 61 Tex. Civ. Rail S. Civ. (Tex. App.) W. 572. 228 S. Civ. way Coats Griffin, Co. v. 20 Tex. 48 misjoinder question of the 542; Railway Hengst, S. W. Civ. Co. Tex. v. 36 plea action, wherein App. 217, Fouts, 832; Key 81 S. W. v. harmless, we refer App. 424, 448; Skip 44 Tex. Civ. Mayhew L. Co. & Isbell the case of Hurt, with 94 Tex. W. 60 S. Ass’n, 216 S. Valley Truck Growers’ Wells Dearing App.) Haberzette v. 80 very is a Abney, S. W. Jordan v. 78 opinion subject, able discussion S. W. 486. We do not au think under the Judge N. Co. see I. & G. Also Moursund. taken, position thorities the court erred in the This S. W. Reed suit try damage and the refusal to cases relief, prayer with is for presented case, in this how injunction require mandatory parties may ever much the suffer inconven perform leveled company against subsequent ience in trials. defendants, wherein common others, The contention of A. Ledbetter and join sought action that cause with plaintiff's, suffered loss on account separate demands individual their several inadequate supply properly water jury sub- plaintiffs damages 79of each asserted part plaintiff's’ mitted to the case only part for themselves finding by jury for relief. There was a defendants. plaintiff loss, had sustained such petition In their out amended require judgment this did not in favor of pe joined original plaintiffs the 131 plaintiffs jury damages. several for the joint respectively of action tition or findings amounts, in its named re- no and no Irrigation Company against Edinburg and quest for the submission of these issues alone, not Stewart interests made. is true the trial court excluded damages alleged defendants, remaining sustaining exceptions those issues in partial total or them from the suffered misjoinder their cause crops during many different failure damages of action. amounts of year during year 1920 and others by any were neither submitted nor established years, tracts on various in both and others request evidence. Plaintiffs did not the sub- tracts, main three over land scattered 'regard mission of to such issues *8 prosecuted and owners the some the tenants. respect amounts. Those in loss issues the require different This properly, general way, submitted, in a were proof crops numerous to different loss directly upon and found bear the 128; Corpus Juris, parties. Cyc. Ac 1 23 424— granted by of the relief which the court com- 421; tions, 306-310, Ford v. Sutherland §§ manding company the to install additional App.) Springs (Tex. Town Civ. 159 Land & Co. extending facilities and to refrain from its 876; Milwaukee & Younkin v. Heat S. W. irrigation system to additional land. This Co., 861; 2 N. W. Traction Wood Nuisance 112 Wis. 87 expressly granted. ruling relief was This Ed.) 1160; (3d Stewart v. disposes appellees’ propositions. Gordon, 344; Tex. Wachsmuth v. Sims 65 The reasonableness or otherwise of the App.) (Tex. Clegg 32 W. v. Tem Civ. S. Edinburg uniform water contract of the Ir- ple (Tex. App.) Lumber W. W. Co. Civ. 195 S. rigation Company wholly was rendered im- 646; 889; Goldman, Blum v. Tex. 1 66 S. pleadings findings material under the Cyc. 25 Yellow Pine 16 Lumber Co. jury. pleading Plaintiffs’ mesne Carroll, v. Tex. 13 S. 76 W. Ham 24 S. mention, had amendment no as we construe Woods, mer v. 6 Tex. Civ. any it, contract, plead- water and had not W. 942. invalidity any ed unreasonableness the readily see, appellees, We can Ledbetter provisions, or contended for reformation of al., suggest, et the rule af- this case any provisions in said uniform water con- they fect them have before because now inconveniently, any respect. appellants up tract set the the courts two nonresidents of the provisions state, uniform water contract and its but, hardship, in of that cannot be while work plaintiffs’ bar and in avoidance of action, rule of law so the altered as particular plaintiffs, prevent hardship, especially the while Ledbetter and others, excepted the when to so hold would have a far contract more disas- as consti- defense, any pleaded tuting specially trous Of course effect. whenever it can be the Tex.) CO. v. IRR. EDINBURG- LEDBETTER (247 S.W.) tary provisions provision, certainly contract for the uniform is intended protection contrary public policy, persons unreasonable, the possessed any prayed contracts, suit or then.they for re no and void. Even of water there construction than that to de- lief whatever. The unreasonableness would be stroy plain fore, purposes. its contract and evident the uniform water only This the leads us to that the concerned the conclusion issue appellant, appellees, others, since claims of Ledbetter and of the defense and force apparent cannot be examination of this contract sustained. from an reform It court did not the par or'grant plaintiffs any time record that much relief by proper supported provisions. labor was consumed its trial and dis- If ticular findings position, good no and we to re- can see no the main case reason being jury issue, turn it for evidence another trial. not believe We do dony- any any assignments satisfactory, there is merit up cross-assignments points, or and ing should relief Milling severally Raywood Co. each overruled. The & Rice Canal held. al., trial court af- Erp 146 W. is therefore S. et Edinburg jury firmed. Ir that found [13J The able, ready, will rigation Appellants’ Rehearing. Motion for appellees ing and other Ledbetter to furnish Appellants supplemental file a motion and for wanted all the rehearing. motion for supplemental solvent; land, motion, appellant judg contends that consequently there could not bo this ment case is conflict accounting interests the Stewart1 following McHenry, with the cases: al. et for (Tex. App.) v. Bankers’ Trust Co. al. Civ. moneys former the latter. owed McBride Ir et al. United appellees stock Ledbetter and rigation App.) Co. Civ. S. 211 W. Irrigation Company, Edinburg holders rehearing (Tex. and same case motion for authority case as no in such find and we App.) 938; Edinburg Irriga S. similarly these this, appellees situated as where tion Co. Paschen judg been to a would have entitled Appeals, W. the Commission of for amount in favor com ment reading 235 S. W. those A most casual interests, pany against the Stewart we only no will not cases show there ap- of no held can conceive interest said account conflict, harmony perfect will show pellees to an that would entitle them in the case; those decisions with that of the instant stockholder’s bill or case of a rehearing motion for is overruled. We of a trust fund. think the in the ease court only granted relief that Appellees’ Rehearing. On for Motion granted junction. mandatory a ease in Appellees’ motion calls our attention jury joined found the fact It must be remembered that the Irrigation Company Edinburg seeking has cause at their instance in diligent itself, reasonably prayed therein, furnish both as adequate itself, damages, facilities one furnish relief as well and will urges judg- affirming supplying under water water to all lands we erred ready sustaining spe- irrigation, ment contract be called season. On and that it will of the trial court exceptions during presented urged supply crop cial subject Company, granted the Stewart power authority Mortgage, had Land relief it Harm E. Stewart jurisdiction grant. also E. to the first and W. Stewart reserved *9 premises grant any original petition plaintiffs, on to of further relief that amended misjoinder ground parties proper. was a there plaintiff misjoinder in In conclusion Com- appellants enjoined pany extending in so far as from its action canal damages. system sought land not now covered recover contracts, not, apply opinion did In our we did not to lands that on the issue way above, any dis were covered contracts. re- raised undertake This claim, any parage only of the restriction merits but leases lands water had theretofore been the matter involved the discretion which and dition to furnished so pass lands are cleared and in con- of the hear matters court to permit upon. farmed not overlook the same to be We did rule under ed during coming crop grow To the issues- arise and out of season. where permit matter, equity in a suit contra lands, a common-law action admin water con- distinction to furnish tract, gation istering equity provided former class those lands are under irri- court jurisdiction parties of all heretofore had been fur- complete 16 decree. water or condition res should enter nished with to take the .are Law, 110; Ruling service, 247; Cyc. Cyc. Case seems to be a salu- 16 10 immediate 247 SOUTHWESTERN REPORTER
344
nerva,
decisive of the entire
the defendants are unconnected
terests of the
538,