Miles v. Bodenheim ( 1916 )

As the cause is yet to be tried on its merits, we will not discuss the testimony, further than to say that the part of it set out in the statement made at least a case of probable right in appellees to the relief they sought. Harrison v. Boring, 44 Tex. 255; Smith v. Allen, 40 S.W. 204; Weynand v. Lutz, 29 S.W. 1097; Howell v. Estes, 71 Tex. 690,12 S.W. 62; Mattes v. Frankel, 157 N.Y. 603, 52 N.E. 585, 68 Am. St. Rep. 804; Insurance Co. v. Patterson, 103 Ind. 582, 2 N.E. 188, 53 Am.Rep. 550; Ellis v. Bassett, 128 Ind. 118, 27 N.E. 344, 25 Am. St. Rep. 421; Irvine v. McCreary (Ky.) 56 S.W. 966, 49 L.R.A. 417; Loan Co. v. Gordon,54 Or. 147, 102 P. 736, 26 L.R.A. (N. S.) 331; Phillips v. Phillips,48 Pa. 178, 86 Am.Dec. 577; Zell v. Society, 119 Pa. 390, 13 A. 447, 4 Am. St. Rep. 654; Rollo v. Nelson, 34 Utah, 116, 96 P. 263, 26 L.R.A. (N. S.) 315; City v. Kingsbury, 101 Ind. 200, 51 Am.Rep. 749; Parsons v. Johnson, 68 N.Y. 62, 23 Am.Rep. 149; 14 Cyc. 1166 et seq.; 9 Ruling Case Law, 746 and 754, et seq. As it did, it should not be said that the judge abused the discretion he possessed when he granted the temporary injunction. Whitaker v. Hill, 179 S.W. 539. Whether the testimony, exclusive of the part thereof given by Bodenheim and Thompson, shown in the statement to have been admitted over appellant's objection, made such a case or not, need not be determined, as we are of opinion that part should not have been excluded on any of the grounds urged to it. Of those grounds we think only the one based on the contention that the testimony objected to was inhibited by article 3690, Vernon's Statutes, needs to be noticed. That article of the statutes is as follows:

"In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."

The theory on which appellant argues in support of his contention is that Mrs. Rogers, who conveyed to him, was a party to the suit within the meaning of the statute, because, he asserts, a judgment in appellees' favor against him would bind her in a suit by him against her on her warranty. As we understand the law, the judgment in this suit, if against appellant, would not bind Mrs. Rogers. As said by the court in Sachse v. Loeb, 45 Tex. Civ. App. 536, 101 S.W. 450:

"It is well-settled law that, in a suit against the warrantor on his covenant in a deed, the record of a suit between him, vendee, and a third party involving the title to the land conveyed to which the warrantor was not a party, and of which he was not notified and requested to defend, is not admissible as evidence to prove, and does not establish, that the recovery therein was under a paramount title. In such case the record is only admissible to show eviction and the assertion of an adverse title."

Bennett v. Virginia Ranch, Land Cattle Co., 1 Tex. Civ. App. 321,21 S.W. 127, relied on by appellant, does not support his contention, and does not announce a rule contrary to the one stated above. In that case the warrantor, not merely because of interest in the result, but because named as such, was a party to the suit. For that reason the court held he would be concluded by the Judgment rendered. In this one, Mrs. Rogers was not named as a party, and a judgment against appellant would establish nothing as against her, except the fact that appellees had asserted and established as against appellant a right to use the alley as a way to their premises. It would not operate to prevent her from showing, if she could, if sued by appellant on her warranty, that there had been no breach of the covenant.

The judgment is affirmed.