Needham v. Cooney , 1915 Tex. App. LEXIS 41 ( 1915 )

I concur in the opinion of the majority of the court that the judgment shall be affirmed as rendered in the lower court, in setting aside the sale to Needham, decreeing the sale to Cooney, and to credit the amount of his bids upon his judgment against Cole; but differ with my Brethren in their holding that Van Deren et al., as attaching creditors of Cooney, are necessary parties to this action. Mr. Pomeroy defines "necessary parties" to be "those without whom no decree at all can be effectively made determining the principal issues in the cause."

I recognize that, if there were a number of attaching creditors, as in the case of Cook v. Pollard, 70 Tex. 723, 8 S.W. 512, it would be necessary to make all of them parties in order to determine the priority of lien, and in order to distribute the funds held to all those interested.

Or, as in the case of Buffalo, etc., v. Bruly, 45 Tex. 6, where a partition of land was prayed for, and it was discovered that other parties had an interest in the land, no valid decree of partition could be decreed without all persons interested being made parties, and, if I am correct in my analysis of the cases cited in the original opinion, they all have some similar question which determined the issue of necessary parties.

No person, except Cooney and Van Deren et al., claim any interest in the fund. Sheriff Harrison expressly disclaimed any personal interest in it, and there is a suit pending between Van Deren and Cooney in the same court in which their respective rights can and should be determined. After a decree in the latter suit is entered, if it be a judgment for plaintiff, foreclosing their attachment lien, then Harrison would be directed to deliver the money accordingly. If defendant, Cooney, recovers, then the attachment would be dissolved, and by motion, under article 3775, Rev.Civ.Stat. 1911, the sheriff would be ordered to deliver to Cooney. Upon failure to do so, he and his bondsmen are subject to suit. De la Garza v. Booth, 28 Tex. 478, 91 Am.Dec. 328.

In my opinion, it is not proper nor expedient for Van Deren et al. to be required to mix their — an entirely independent — cause of action with this one. They may already have prosecuted their suit to judgment, or might be able to do so before this case is finally disposed of upon appeal, etc. The authorities assert the rule to be that in such case the hearing as to Harrison should be postponed to await the action of the court in the case of Van Deren v. Cooney. Rieden v. Kothman, 73 S.W. 425; Corpus Juris, vol. 1, pp. 55, 56; Ruling Case Law, vol. 1, pp. 16, 17; 20 Cyc. 1109.

The cause should be reversed as to that portion against Harrison, for $5,282, and the proper practice is that the trial court should postpone further hearing as to this fund to await the outcome of the cause of Van Deren v. Cooney, thereby avoid complicating wholly different and separate causes of action, and avoiding two judgments against Harrison for the same money, to which he makes no claim in his own right.