Kelly v. Kelly , 23 Tex. 437 ( 1859 )

Roberts, J.

The judgment in this case, recites, that “ the plaintiff discontinues as to Jerry Kelly, J. M. Duke, William Greenhaw and John T. Kelly, plaintiffs,” &c.; and these being all the plaintiffs, it was held by the court, as soon, it is presumed, as the question was raised, that there was no case in court, for want of parties. Nor can we say that the court was not right in this determination; for so it appears upon the record. When this discontinuance was thus taken, the court should have declined to proceed further with the case, than to enter a judgment of non-suit against the plaintiffs. Instead of that, however, thus court proceeded to adjudicate upon the defendants’ exceptions to the amended petition, submit the case to the jury, arrest the plaintiff’s evidence for the want of parties to the suit, receive the verdict of the jury in favor of the defendants, and render a judgment in favor of defendants on the verdict against “plaintiff, John T. Kelly, assignee of James Kelly and Sarah Wornell,’’ and his securities, for costs.

Now it is clear, that if the court was right in arresting the evidence offered for the plaintiff, because there were no plaintiffs in court after the discontinuance, all the subsequent proceedings were wrong, for the same reason. Why did any one insist upon proceeding with the case after the suit had been discontinued by all the plaintiffs ? This can only be explained upon the supposition that John T. Kelly, who claimed to be the party having the entire interest, sought to discontinue the suit, only so far as it was based on the heirship of himself, and the other three plaintiffs who were named, and to retain it in court so far as it pertained to his rights, derived from his mother, Mrs. Wornell, and from his brother, James Kelly. This was not the legal effect of the discontinuance as it was entered; and if such was his intention, he should have endeavored to correct it, and have it fully understood, when he was first informed by the court, that there were no plaintiffs in court, which was, while he was offering his evidence. If the court had not permitted him then to have» set himself right upon the record, either by explanation of his meaning, or a retraction of his discontinuance in part, he should have desisted from further efforts to proceed in the trial; and, upon a non-suit being entered, he could have moved to set it aside, and have supported his motion with affidavits or other evidence, showing either his mistake, or the court’s misconception as to the extent of the discontinuance.

The judgment must, therefore, be reversed, as to all the proceedings subsequent to the discontinuance by the plaintiffs, and be remanded for further proceedings.

Reversed and remanded.