57 S.W. 35 | Tex. | 1900
Certified questions from the Court of Civil Appeals for the Fourth District.
The questions arise upon the following facts: Plaintiff in error sued August Woeltz, her husband, for divorce and for a division of their community property, and joined as codefendant John O'Brien, the beneficiary in a deed of trust on part of the land involved previously executed by herself and husband to secure a debt, for the purpose of obtaining the cancellation of such deed of trust on the ground that the property on which it was given was, when it was executed, the homestead of its makers.
August Woeltz filed a cross-bill, praying that a divorce be granted to him, and O'Brien defended the action against him. The judgment of the District Court granted plaintiff's prayer for divorce, denying that of her husband; provided for custody of the children; adjudged a recovery by plaintiff of August Woeltz of costs of suit and the sum of $150 as attorney's *552 fees, and declared the lien of O'Brien invalid as to part of the property and valid as to the remainder embraced in the deed in trust. Afterwards, a petition for writ of error was filed by plaintiff, Ida Woeltz, and a bond was given, payable to all defendants. Her assignments of error attack only the judgment in favor of O'Brien. Thereafter, the plaintiff caused an execution to issue upon the judgment against August Woeltz for the costs and attorney's fees allowed by the judgment and has collected same. Defendants in error have moved to dismiss the appeal upon this ground. August Woeltz filed cross-assignments attacking the judgment for divorce and for attorney's fees.
These questions are certified:
"1. Does the action of plaintiff in error in enforcing the collection of the costs and attorney's fees estop her from further prosecution of this writ of error?
"2. Should cross-assignments by August Woeltz attacking the validity of the decree of divorce and for costs and attorney's fees be considered in the appellate court, in the absence of a cross-appeal or cross-writ of error by him, the assignments of error of plaintiff only attacking the decree in favor of the beneficiary in the trust deed?
"The last question is asked in view of the decision in Horter v. Herndon, 35 Southwestern Reporter, 80, by Court of Civil Appeals, First District."
1. We shall assume, as is inferable from the statement of the case, that the petition and bond for writ of error were such as to bring before the appellate court for revision the whole judgment and all of the parties.
The judgment consists of distinct parts. The controversy between the plaintiff and O'Brien was distinct from that about the divorce and its incidents between plaintiff and her husband. The first mentioned controversy might have been made the subject of another suit which could have been disposed of without effect upon anything involved in the divorce suit, and the fact that both controversies are embraced and disposed of in the same action does not make them one or so connect them that appellate proceedings must involve the whole judgment. We think it clear, under the practice in this State, that either party to the judgment between plaintiff and O'Brien could have prosecuted appeal or error from it without carrying up the judgment disposing of the action for divorce and partition.
It would seem to follow that, if plaintiff has precluded herself from prosecuting an appeal from the latter judgment, which we need not determine, this would have no effect upon her right to have the other reviewed. Since she has taken a proceeding sufficiently comprehensive in its inception to enable her to bring in review every part of the judgment, her action in securing satisfaction of one part should not estop her from prosecuting her complaints of the other, for the reason that the one of which she has obtained satisfaction will not be affected by any disposition which may be made of her appeal from the other. *553
2. Assuming that the writ of error was perfected from the whole judgment, we think the defendant in error, August Woeltz, has the right to assign error in the judgment for divorce and for attorney's fees.
The right of an appellee or defendant in error to assign cross-errors, it seems to us, necessarily attaches upon the perfecting of the appeal or writ of error, and is not dependent upon the character of the objections made by the other party, since the assignments of error of the latter are not required to be presented contemporaneously with the perfecting of the appeal or writ, but may be filed at a much later time when the right of the other party to take revisory proceedings may have expired. The taking of the appellate proceeding by one party relieves his adversary of the necessity of taking like action and brings the judgment before the appellate court for revision upon the complaints of both, and either has the right to point out errors in it prejudicial to him. Duren v. Houston, etc., Railway Co.,
The objections which may be urged by the appellee or defendant in error are not restricted by those presented by the other party. This rule does not permit assignment of errors as between coappellees. Anderson v. Silliman,
Nor does our decision apply to a case where the appellate proceeding does not embrace a distinct part of a severable judgment of which the appellee or defendant in error seeks to complain. The question which would arise in such a case is not before us.