41 Tex. 267 | Tex. | 1874
The only error assigned by the plaintiff to the proceedings had in this ease in the court below is the overruling his exceptions to the report of the commissioners appointed by the court to partition the land, as ordered by the decree, between himself and Bryan and wife, his co-defendants in the District Court, as the representatives of the estate of James Hilliard, deceased.
The third exception to the report of the commissioners, which is the only one which counsel for plaintiff in error
Although not included in the assignment of error, plaintiff insists that the judgment should be reversed: first, because no service of process was had upon him, nor did he appear by answer, and therefore he maintains the decree, which purports to have been entered by consent of parties, is not binding upon him; second, the heirs of Hilliard are necessary parties, and the judgment partitioning the land without their being before the court is erroneous. The right to insist upon these objections, without having assigned them as error, is claimed under the practice of the court to consider errors which go to the foundation of the action, although not assigned; and also from the fact that the defendant in error, Crawford, opened the record for consideration of all errors apparent upon it by a suggestion of delay. This last proposition is not tenable; for although the practice of the court is'such as is suggested, it is so only when the cause has been submitted to the court as a delay case. The defendant in error, it is true, made the suggestion and proposed to submit the cause, at one time, as a delay case, but he withdrew the suggestion before the case was submitted by plaintiff in error. We cannot therefore hold that the latter can claim any benefit from this suggestion. But if the objections go to the foundation of the action, under the established practice of the court, the plaintiff in error may, no doubt, avail himself of them. We will therefore consider them in this point of view.
In support of the first of these objections, we are referred to the decisions of this court, in which it is held, where some of the defendants have been served with process, while others have not, the recital in the judgment entry, that the defendants appeared, &c., &c., Will be construed as referring only to such defendants as have been served.
But if it did not sufficiently appear from the judgment that plaintiff in error was in court and consented to the decree, he certainly made an appearance when he filed his objections to the report of the commissioners; and as he there made no objection to the decree, but, on the contrary, insisted that the commissioners had not conformed to its requirements, it is unquestionably too late for him to make the objection, for the first time in this court, that he was not a party to or bound by it.
Nor can we admit that the failure to make the heirs of Hilliard parties can be urged for the first time in this court, and that, too, without being assigned as error, to reverse a judgment rendered, as this was, by consent. If the judgment affects these heirs in any way, what right has the plaintiff in error to complain of it ? Certainly it is not his duty to protect their interest. When they object to the sale of the land ordered by the decree, it will- be time enough for the court to inquire into it. If it be admitted that they are interested in the land which is to be sold under the decree—and as they were not parties to the suit, they may hereafter assert their title against the purchasers—this may no doubt greatly detract from the market value of the land to be sold, and may result in injury to the plaintiff or to Crawford, as the amount which the land would bring under other ¿ircumstanees may be greater or less than the debt in payment of which it is sold. But whatever may be its effect in this respect, it results from the agreement of the parties themselves, and this court
There is no error in the judgment of which the plaintiff in error can complain, and it is therefore affirmed.
Affirmed.