66 Tex. 100 | Tex. | 1886
At the time the agreement between Mrs. McMillan and the plaintiff and defendant was made, through which it was agreed, in the event that Mrs. McMillan did not institute suit against all the parties claiming the entire Mills survey, at the next term of the court, that judgment should go against her for the matter in controversy, there was no controversy except as to the
The utmost limit of the right of Jones or Seerest under that agreement, on failure of Mrs. McMillan to institute the contemplated suit, was to have an adjudication in favor of Jones against Seerest for the money due with forclosure of the liens claimed by him on the land. Such a judgment would have been conclusive against Mrs. McMillan of the validity of the title conveyed by Jones to Seerest. Instead, however, of pursuing the course which the agreement authorized, Jones amended his petition and asserted title to the whole survey, except some parts thereof which he alleged belonged to other persons who came into the case. Mrs. McMillan was not present, nor was she in any way notified of the new claim set up by Jones or any other party to the suit. Yet, after rendering judgment against Seerest for the sum due by him to Jones, and foreclosing the lien claimed by the latter on one hundred acres of the survey, a judgment was rendered, upon the strength of the agreement, which authorized no such thing, whereby it was declared that Mrs. McMillan had no title to any part of the survey, and it was adjudged to be the property of Jones, and. his title thereto quieted, and so, notwithstanding his own pleadings, alleged title in others.
That Mrs. McMillan was entitled to her day in court before her rights in the matter set up by the amended pleadings, filed by Jones on the first day of the December term, 1883, could be acted upon, is too clear. That amendment set up an entirely new cause of action, and it could not be heard until she' was duly notified to appear and answer to it, unless she voluntarily appeared for that purpose. This the record shows she did not do. Yet. within a few days after the amendment, was filed, early in the same term during which it was filed, the court proceeded to declare that she had no title to any part of the survey; that it belonged to the plaintiff, Jones. This was errbr.
The judgment will be affirmed in so far as it went in favor of Jones against Seerest, but in all other respects it will be reversed and the cause remanded. It is so ordered.
Beveesed and Demanded.
[Opinion delivered April 20, 1886.]