Sharp v. Johnson , 60 Tex. Civ. App. 176 ( 1910 )

This is an action of trespass to try title brought by W. G. Sharp and wife and Clinton Cartwright against the appellees to recover a tract of 1,110 acres of land on the Everett Ritter survey in Anderson County. Plaintiffs' petition alleges that Ella Sharp is the owner of the south half of the tract described in the petition, and that plaintiff Clinton Cartwright owns the north half of said tract.

The defendants excepted to this petition on the ground of misjoinder of parties plaintiff and of causes of action. These exceptions were not heard until several terms of the court had passed after they were filed. Upon the hearing of the exceptions they were sustained by the trial court. Plaintiffs Sharp and wife excepted to this ruling, and then announced that they would take a nonsuit without prejudice to their title to the land or any right of action they might have therefor. This nonsuit was allowed by the court, and thereupon said plaintiffs dismissed their suit for the south half of the land. The cause was then continued, and the plaintiff Cartwright and all of the defendants were granted leave to amend. At a subsequent term of the court the executrix of the will of Clinton Cartwright, who had died in the meantime, and the guardian of said Cartwright's sole heir, made themselves parties, and by an amended petition sought to recover the north half of the 1,110-acre tract. Upon the trial of the case thus made, appellants not being parties to the suit, judgment was rendered in favor of the plaintiffs. This judgment was rendered on January 4, 1909, and recites that the suit of appellants for the south half of the land had been previously dismissed by an order of the court made and entered on January 28, 1908. From this judgment appellants seek to prosecute this appeal.

From the foregoing statement it is apparent that appellants were not parties to the judgment appealed from, and have no interest in the subject matter thereof. If they had moved to reinstate their suit for the south half of the land on the ground that the court erred in sustaining the exception to the petition, and thereby forcing them to take a nonsuit, and such motion had been overruled, they might have prosecuted an appeal from the judgment of dismissal. But, having acquiesced in the ruling of the court and dismissed their suit for the portion of the land claimed by them, they had no further interest in the suit which was thereafter prosecuted to final judgment between their original coplaintiffs and the defendants, and have no right to appeal from the judgment in said suit. (Huston v. Berry, 3 Tex. 235; Easterling v. Blythe, 7 Tex. 213 [7 Tex. 213].)

If appellants had fixed and preserved their right of appeal from the ruling of the trial court sustaining defendants' exceptions to their pleading and dismissing their suit, and the question of the correctness of such ruling was properly before us, the ruling should be sustained. There is no community of interest shown by the plaintiffs in the tract of land described in the petition, but, on the contrary, the allegations of the petition affirmatively show that each plaintiff claims separately a segregated portion of said tract. Appellants make no claim to any interest in the north half of the tract, and their coplaintiffs claim no interest in the south half. We think it clear that this was a misjoinder of parties plaintiff and of causes of action, and the trial court correctly sustained defendants' exceptions to the petition on these grounds. (Allen v. Read, 66 Tex. 21; Punchard v. Delk, 55 Tex. 304 [55 Tex. 304].)

The fact that these exceptions were not presented to the trial court at the term of the court at which they were filed did not deprive the court of jurisdiction to pass upon them at a subsequent term, and there is nothing in the record which would authorize a holding that there was no agreement that the hearing of the exceptions could be postponed, or that the judge abused his discretion in hearing and passing upon them at a term subsequent to that at which they were filed, nor does it appear that any objection was made by the appellants in the court below to the action of the court in hearing the exceptions at the time they were presented and passed upon.

If appellants were entitled to be heard on this appeal, none of their assignments could be sustained and the judgment of the court below should be affirmed.

From what we have said as to appellants' right to prosecute this appeal it would seem that the proper disposition to make of the case would be to dismiss the appeal, but as we have examined the record and find no error in the proceedings, and a correct result is reached by an affirmance of the judgment of the court below, our order to that effect heretofore entered will not be disturbed.

Affirmed.

Writ of error refused.