Moore v. Francis

17 Tex. 28 | Tex. | 1856

Lipscomb, J.

This suit involves the same questions of law, presented in the case of the same appellant v. Mary Minerva and her children, just described ; and it is not necessary to go over the ground again. In this case one additional point, only, has been presented. In the District Court, there were two suits pending by these appellees, a part of them in No. 2296 and 2297, on the docket. The Court, without an application from either party, ordered the two to be consolidated and tried as one suit, neither of the parties objecting to the order of the Court, but went into the trial of the cases so consolidated. We refer to the reasons given in the other case, why we regarded it no error for several plaintiffs to be joined together in their suit for freedom. This might have been objectionable in a suit at common law, under the English practice. This strictness was never observed in a bill in Chancery, to which proceedings in our Courts may be likened. The Court having all the parties before them, could adjust their respective rights depending upon the same title. There was the same title relied upon, in this case, for freedom, by all of the plaintiffs.

If we had doubts as to the propriety of consolidating the two cases, there are two considerations that would determine our judgment, in refusing to reverse the judgment. The parties were present and made no objection, and silence, under such circumstances, should be regarded as a consent to the order made by the Judge ; and secondly: the appellant was not placed in a worse condition, as to his defence to the action, and therefore has sustained no injury from the two cases being tried in one. The judgment is affirmed.

Judgment affirmed.