2 Posey 597 | Tex. Comm'n App. | 1879
Opinion.— The allegations in the petition affirmatively show that there was no priority of right or claim between the several appellees with reference to the subject-matter of the litigation. Each of them claimed to be the owner of his one hundred and sixty acre pre-emption survey; neither asserted nor claimed any right or interest in the other surveys; no community of interest in the several tracts of land was claimed; on the contrary, it appears that no such interest had ever existed.
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It was held in May v. Slade, 28 Tex., 208, that when nonjoinder of parties plaintiff appeared from the allegations in the petition, that the objection might be taken by exception.
In the case of Punchard v. Delk,
In this case, however, there never had been any common interest among the plaintiffs; each was seeking to recover a separate and distinct tract of land, all joining in the same petition.
We are of opinion that the court erred in overruling appellants’ demurrers.
On the trial of the case in the court below, the appellants asked the court to charge the jury, in effect, that if appellees had settled on the land in controversy as pre
In our opinion the charges ought to have been given.
The other errors complained of need not be considered as they are such as will not likely occur upon another trial.
Bbveesed and remanded.