Summerlin v. Reeves , 29 Tex. 85 ( 1867 )

Coke, J.

A motion is made on various grounds to dismiss this case. And, among others, because the 'petition for the writ of error describes the judgment as having been rendered in favor of John Reeves, executor of Daniel Lloyd, deceased, when in fact (and it is so shown by the record) the judgment was rendered in favor of John Reeves, executor of Daniel Lloyd, deceased, and L. L. Lloyd.

The motion to dismiss cannot be maintained on this ground, because the misdescription is cured and the judgment sufficiently identified by the writ of errror issued by the clerk, .which does sufficiently describe the judgment complained of and the parties to it. (Hillebrant v. Brewer, 5 Tex., 568; Wright v. Williams, 12 Tex., 36.)

Another ground assigned in the motion is, that L. L. Lloyd, one of the parties in whose favor the judgment was rendered in the court below, is not cited, and is not a party to the writ of error.

This is a fatal objection to the writ, for which the case must be stricken from the docket.

. The judgment sought to be revised is indivisible. It is rendered in favor of the two plaintiffs, John Reeves, executor, and L. L. Lloyd. The latter is not informed that her rights in this judgment are assailed in this court. It is a dictate of natural justice, as well as a general principle of law, that every person to be directly affected in his interest or rights by the judgment of a court of record is entitled to be named or described in the suit, to have notice of it, and an opportunity of being heard in defense of his rights.

Proceedings by writs of error are not exempt from the operation of this rule. (Burleson v. Henderson, 4 Tex., 56; Porter v. Rumey, 10 Mass., 66; Johnson v. Robeson, Galveston T., March 30, 1864,) [27 Tex., 526.]

Mr. Daniel, in his Treatise on Chancery Practice,- deduces the rule from the authorities, that “ in the case of a re-hearing or appeal, all parties interested in supporting the decree or order appealed from are entitled to be heard; but no party except the appellant can be heard in support of the appeal.”

It is unnecessary to adduce additional argument or authority in support of a proposition so plain. The motion to dismiss is sustained.

Dismissed.