Reilly v. Hanagan , 1920 Tex. App. LEXIS 1080 ( 1920 )

On Motion for Rehearing.

Counsel for plaintiff in error present ' a vigorous and persuasive motion for rehearing, but we do not see our way clear to grant it. It is sometimes difficult to determine just when a party' to .a judgment is a necessary party to an appeal, but to say the least of it the defendants Hugh Reilly, Jr., and Edward Reilly, are so intimately connected with the issues involved in this litigation as to render it advisable to'have them before this court before undertaking to render judgment on either the plaintiff in error’s assignments of error or the cross-assignments of defendant in error. The defendants named are full brothers of defendant in error Lucile Reilly Hanagan, and apparently equally entitled with her in sharing in their mother’s estate, and no explanation is presented why the plaintiff in error was not allowed to recover against them and denied a recovery as to the sister. But it is said they have not complained by appeal or otherwise. True, the record presents no complaint on their part, but it does not exclude the possibility of a successful complaint in their behalf in the future. As noted in our original opinion, the record does not, by plea, recitation in the judgment, or otherwise, affirmatively show that Hugh Reilly, Jr., and Edward Reilly, either answered, entered an appearance, or were even cited to appear and answer the cross-action, which, so far as the record shows, was first presented more than a year after the suit was originally instituted by Mrs. Hanagan.

We cannot say from the record that Hugh Reilly, Jr., and Edward Reilly, may not yet appear and be able to show that either one or both were not cited or otherwise made parties defendant to the cross-action, and hence have the judgment below in plaintiff in error’s favor set aside. It is to their apparent interest to do so, and at least one of these parties, Hugh Reilly, Jr., is alleged in the original petition to be a resident of a county in Texas other than that of the suit and trial. Such circumstances of the record and the possible confusion that might arise therefrom entered into our original consideration and continues to have weight with us and to add to our inclination to adhere to our original opinion on the subject. See, also, in addition to the authorities cited in our original opinion, the following cases: Curlin v. Can. & Am. Mortgage & Trust Co., 90 Tex. 376, 38 S. W. 766; Bornard v. Tarleton, 57 Tex. 402; McAllister v. Godbold, 29 S. W. 417; F. & M. Nat. Bank v. Waco Electric Co., 89 Tex. 331. 34 S. W. 737.

Nor are we inclined to reverse our ruling on the other ground for dismissing the writ of error. True, the motion for rehearing presents the number of cases on the docket of this court and of the location of this ease thereon, and other circumstances from which it is urged that defendants in error will have ample time within which to brief their case. But, as pointed out in our original opinion, no effort of the kind was made in answer to the motion to dismiss the writ of error, and under our rules, intended to conserve the time of this court, it was not our duty to grope through the record in an uncharted way in order to find a justifiable reason to relieve plaintiff in error from a plain violation of the rules relating to briefs which defendant in error was urgently invoking. ‘Under such circumstances, and after judgment on the motion, and without excuse for not making a timely answer thereto, we think it now too late for plaintiff in error to be heard or favored on his present insistence that his violation of the rule regulating the filing of briefs is without prejudice or injury to the defendant in error. Moreover, in view of our rules under which cases pending on the docket of this court may be transferred to other Courts of Civil Appeals, it cannot be said with certainty just when this case may be reached, nór can we foresee circumstances that may exist which might entail inconvenience or hardship upon defendant in error to now he required to meet or answer briefs by the plaintiff in error.

We accordingly conclude that the motion for rehearing should be overruled.