Reed v. Cavitt, No. 1202.

No. 1202. | Tex. App. | Apr 17, 1895

Martha Reed, a minor, is a party defendant to this suit, and judgment below was rendered against her in that capacity. She, as such minor, was represented in the case by a special guardian. During the pendency of the suit, and before judgment, she married J.D. Lindsay. Her marriage was not suggested before judgment, and Lindsay was not made a party. This fact was brought to the attention of the court by a motion for new trial. The question is whether the judgment is erroneous under the circumstances as to Martha Lindsay, her husband not being a party to the action and not included in the judgment.

Article 1253, Sayles' Civil Statutes, reads as follows: "A suit instituted against a feme sole shall not abate by her marriage, but upon a suggestion of such marriage being entered on the record in open court, or upon a petition representing that fact being filed with the clerk, it shall be his duty to issue a scire facias to the husband of such defendant, and upon the return thereof executed, the husband shall be made a party to such suit, and it shall proceed as if such husband and wife had originally been defendants in such suit." The tone of this article of the law would seem to require that it is the duty of the plaintiff in the case to resort to the procedure required by this statute in order to have the husband before the court.

The property in controversy, so far as the interest of Martha Lindsay extends, is her separate property, and it has been steadily held, that in a suit involving the wife's separate property the husband is a necessary party, with some few exceptions, in neither of which does this case fall. If the duty rests upon the plaintiff who seeks to recover the wife's separate estate to make her husband a party to the suit, it seems equally clear that the same duty would rest upon a plaintiff when he seeks to hold a feme sole liable after her marriage, since she was brought into the suit, but before judgment was rendered. The husband, under the statute, is as much a necessary party in one instance as in the other, and the reason upon which rests the necessity of his joinder exists in one case as well as in the other. The plaintiffs below, when the defect in the judgment in this respect was called to the attention of the court in the motion for new trial, did not show that they were ignorant of the marriage, or state any facts that would excuse them from making the husband of Mrs. Lindsay a party. The court, for the reason stated, should have granted the motion for a new trial.

In reply it has been suggested that if there was error in this respect it only affects Mrs. Lindsay, and that the judgment as to the other defendants should be affirmed. Article 1337, Sayles' Civil Statutes, requires, that only one final judgment shall be rendered in a case, and the court, in Wootters v. Kaufman,67 Tex. 496, in construing this article, says that no final judgment can be rendered against one until it is rendered against all, however independent of each other their respective defenses may be. This is the rule in this court, as followed in the recent case of Nasworthy v. Draper, in the opinion on motion for rehearing, where it is held that a reversal as to one will operate as a reversal of the entire case. We are aware that there are some decisions that hold differently, but this court desires to follow the plain provision of the statute upon the subject. Exceptions to this rule might exist in cases in which it is clearly shown that the defendants, although joined in one suit, hold separate, several, and distinct interests in the land in controversy of such a character as to permit separate controversies, and in which a severance may be had. But this does not appear to be a case of that character.

The assignments of error complaining of the charges of the court are too general to be considered, and the one requested and refused, as set out in the third assignment of error, is on the weight of evidence.

In view of the fact that the case will be again tried, we decline to pass upon the facts.

For the error pointed out, the judgment will be reversed and the cause remanded.

Reversed and remanded.