101 Tex. 603 | Tex. | 1908
delivered the opinion of the court.
An application for a writ of error in this case was refused and, afterwards, on motion for rehearing, was granted, because it was thought that probably the trial court had committed error in refusing the plaintiff in error, who was defendant below, a continuance upon its application. We shall confine our opinion to that question.
The action was originally brought in behalf of Aline Howell, Vannie Howell and Sullivan Howell, minor children of Henry Howell, by their next friend, George M. Cecil, to recover damages for the negligent killing of Henry Howell by the servants of the defendant. On the day the cause was called for trial, the petition was amended so as to allege that the deceased left a widow, Mrs. Nannie Howell, and another child, Edward Howell, the former of whom was non compos mentis, and the latter an infant four years of age, and to ask that the cause might be prosecuted in their behalf, also, by Cecil as next friend. On the same day a plea of intervention was filed in their behalf, by Cecil as next friend, for the same purpose. The defendant answered both the amended petition and the plea of intervention. It also filed an application for continuance in which it called attention to the claim, then first set up in behalf of Nannie and Edward Howell, and asserted that without such amendment
It was made to appear upon the hearing of the application that the attorneys for plaintiffs first learned of the existence of the widow and the other child about three days before the filing of the new pleadings and that they then informed the attorneys for the defendants of the fact and were told that the latter had known it for about two weeks. Ho recovery was had in behalf of Mrs. Hannie Howell, but of the $5,000 allowed by the jury the sum of $1,333.33 was apportioned to Edward.
The amended pleading unquestionably asserted a new cause of action, and if the defendant had not answered to it, nor appeared, nor had other notice of it, service of process upon it would have been necessary to enable the plaintiffs to proceed to judgment; but the defendant voluntarily waived notice bjr answering to the new demands set up against it, and was thenceforth in court to respond to them. It, of course, had the same right that défendants generally have to continue the cause upon sufficient grounds, but it is not true, as its counsel seem to contend, that it had the right to a continuance as a matter of law arising merely from the change in the plaintiffs’ pleadings without showing a necessity therefor. The contrary has often been held. Texas & N. O. Ry. Co. v. Goldberg, 68 Texas, 686; Beham v. Ghio, 75 Texas, 87; Johns v. Northcutt, 49 Texas, 444; Cummings v. Rice, 9 Texas, 527.
Rule 16, regulating the practice in the District Court, expresses substantially the result of the decisions of this court upon the. subject of continuance upon the ground of surprise caused by changes in pleadings, and provides that such surprise is to be judged of by the court and that the continuance is to be granted “if the party sháll make a satisfactory showing, or if it otherwise be apparent that he is not ready for trial on account of said supplement or amendment.” The court may allow the continuance without a showing if the propriety of granting it “otherwise be apparent;” but if it be not so apparent the party must make it so by a showing. As
It is true, as said by counsel for plaintiff in error, that the original plaintiffs could not legally have recovered judgment on the first pleadings over proper objections of the defendant, for th'e reason that Mrs. Howell and the other child .were necessary parties. This is a very different proposition from the further one stated, that a judgment recovered in such state of the pleadings woxxld have been void; but that does not affect the question we are considering. If the defendant was content to pursue that course, it was in a position, before the new parties were brought in, to depend upon the lack of proper parties plaintiff and, upon its right, when the existence of other necessary parties plaintiff should be developed, to insist either that the cause be dismissed or that the other parties be brought in. Cunningham v. State, 74 Texas, 511. But the plaintiffs had the right at any time to amend their pleadings so as to introduce the other beneficiaries, subject only to the restrictions put upon the right of amendment by our rules of procedure. When this was done and the defendant answered, there was no reason why the cause should not proceed to trial unless delay was necessary in order to enable the defendant to meet the cause as changed. Of course a defendant ought never to be forced into an immediate trial under such circumstances if he really needs further time to prepare and present his defenses, since he is not required to prepare himself against demands not set up in the action. Chicago, R. I. & G. Ry. Co. v. Groner, 100 Texas, 414. But whether or not delay is necessary for such purpose denends upon all of the circumstances and is to be judged of bv the trial court in the exercise of a sound discretion, xvhieh exercise is reversed by the Appellate Courts only when it appears to have been wrong.
The application for continuance did not state affirmatively that the defendant was sxxrprised by the bringing in of the new parties, nor that evidence not at hand but which could be obtained, was necessary to meet the case as altered. It stated that the defendant had not investigated as to some of the matters involved, but did not state anything "to indicate that any investigation was needed, or
We have examined the facts concerning this question with great care and have written at some length because we realize the necessity of careful discrimination in forcing parties to trial upon new causes of action so soon after they are set up against them in order to avoid the denial of their right to reasonable time in which to prepare and present their defenses; but we have reached the conclusion that no good reason existed for delay in this case to meet the claim of Edward Howell.
Affirtned.