20 Tex. 606 | Tex. | 1857
The principal question upon, which the case was decided in the Court below, and the question upon which its decision in this Court depends, is as to the effect of the former judgment, pleaded by the plaintiff in bar of the defendant’s right. That judgment was rendered in a proceeding upon an application by Horton to the District Court of Travis county for a peremptory mandamus to the Surveyor to survey the land for him. The Surveyor controverted the right of the plaintiff to require him to make the survey ; and one of the grounds of objection was that there had been a previous survey of the land for one Rowe. Hamilton, without having been made a party to the proceeding by the service of process upon him, or otherwise, came into Court and filed an answer to the petition for mandamus, objecting various grounds of insufficiency in the petition as a reason why a mandamus should not issue, and claiming that he is entitled to the land by virtue of the certificate and survey made for Rowe. The Court upon the hearing refused the mandamus and dismissed the proceeding. Was this an adjudication upon the merits of the title as between these parties ? We think clearly not. A mandamus is not the mode of trying title to land. It is only
The principle upon which judgments are held conclusive upon the parties, requires that the rule should apply only to that which was directly in issue, and not to everything which was incidentally brought into controversy during the litigation. (Id. Sec. 528.) The rule applies only to what was directly in issue and determined by the judgment; and it must have been a decision upon the merits. (Id. 29, 30.) There was no decision upon the merits of the title, as between these parties. It cannot be pretended that the mere refusal of the Court to make the rule absolute, for a mandamus, was an adjudication upon the merits of the title or ultimate right of either of the parties. One of the grounds of objection interposed by Hamilton to the mandamus was, that the Court in Travis county had not jurisdiction, because the lands were situated in another county. Another was, that the applicant showed by his petition, that he already had a survey of the land; that, consequently, there was no necessity for a survey; and that was one of the grounds on which the judgment refusing a mandamus was affirmed by this
Reversed and remanded.