Hall v. Murphy

| Tex. | Jul 1, 1855

Wheeler, J.

There certainly was no necessity for the defendant to make Wiggins a party to the suit. He could have urged his defences as effectually without, as by joining him. He was not a necessary party; and it may well be questioned whether he was a proper party, and whether he should not have been dismissed upon the plaintiff’s exceptions. (Johnson v. Davis, 7 Tex. R. 173.) But if there was error in the ruling of the Court upon the exception, it did not go to the merits ; and is not of a character to require a reversal of the judgment.

The defendant Wiggins not being a necessary party, and not having a legal interest adverse to his co-defendant, so as to have entitled the latter to object to his testimony, if the plaintiff had chosen to make him a witness, (4 Tex. R. 341; 10 Id. 452,) his being made a party, though a proper party to the suit, could not deprive the plaintiff of the benefit of the testimony of his wife. It was error, therefore to exclude from the jury the deposition of Mrs. Wiggins, on the ground that her husband was a party to the record ; for which the judgment must be reversed.

It is unnecessary to consider the other questions presented by the record, as they may not arise for decision upon another trial. The judgment is reversed, and the cause remanded.

Reversed and remanded.