Fidelity Union Fire Ins. v. Bickerstaff , 249 S.W. 539 ( 1923 )

The opinion in cause No. 2027, Fidelity Union Fire Insurance Company v. Mitchell, 249 S.W. 536, handed down this day, disposes of all the material questions raised on this appeal, except that presented by the eleventh proposition. The policy contained this clause:

"Loss, if any, payable to J. E. White, mortgagee, as his interest may appear, subject, nevertheless, to all conditions of this policy."

Appellant asserts that there was fundamental error in the judgment because J. E. White was not made a party to the suit. A similar question was considered and decided against appellant's contention in the case of Camden Fire Insurance Co. v. Wandell (Tex. Civ. App.) 195 S.W. 289. We think that decision is correct. The mortgagee may or may not have had an interest in the proceeds of the policy at the time of the loss, and could not recover without an affirmative showing of the extent of his interest. If appellant wished the issue tried out and disposed of, it should have made the mortgagee a party in the court below. In addition to authority already cited, see Staats v. Georgia Home Insurance Co.,57 W. Va. 571, 50 S.E. 815, 4 Ann.Cas. 541; Liverpool London Globe Insurance Co. v. Cargill, 44 Okla. 735, 145 P. 1134; Joyce on Insurance, § 2305.

Affirmed.