Birdwell v. Butler , 13 Tex. 338 ( 1855 )

Wheeler, J.

The party whom the plaintiff in error represents, did not set up a claim to the property subjected by the judgment to the payment of his debts. On the contrary, he disclaimed ownership, and on that ground, asked that the suit as to him be dismissed. The plaintiff in error cannot now complain that the judgment has not accorded to him rights which he, when made a party to the suit, did not claim, and which his intestate expressly disclaimed. He did not ask that anything be adjuged in his favor, and the only matter adjudged against-him was costs. This, then, is the only matter of which he can complain; for he surely cannot complain of the judgment against his co-defendant, which operates in discharge of the debts of his intestate. And the only question properly arising to be determined upon this writ of error is, whether the party represented by the plaintiff in error was properly joined and jointly liable with his co-defendant for the costs of the suit. Whether he might not properly be made a party, is a very different question from whether he was a necessary party; for in many cases a person may be made a party, although he is not an indispensable party. (Story’s Eq. Pl. Sec. 153.) It may be true therefore that the plaintiff in error, or his intestate, was not a necessary party to this suit, but we do not doubt that he might properly be made a party. He was jointly implicated with his co-defendant in the fraudulent conveyances ; and it was his fraudulent acts which imposed upon the plaintiffs the necessity of instituting the suit. It might admit of more question, whether the petition was not objectionable for multifariousness, for having joined distinct and several judgment creditors as plaintiffs, if the objection had been taken in time • and the propriety of such joinder of plaintiffs, though it has been questioned, is supported by very high authority. (Story’s Eq. Pl. Sec. 537 a, 161, and notes.) But there does not seem to have been any question of the right to join, as defendants, the parties jointly implicated in the fraudulent conveyance. (Id. Sec. 286.) If however the objection was well taken, the exception to the petition on this ground was not insisted on and must be deemed to have been waived. (Id. 284 a.) But we are of opinion that the party represented by the plaintiff in error was properly joined with his co-defendant, and consequently that his estate is jointly liable for the costs of the suit. The judgment is therefore affirmed.

Judgment affirmed.