Mitchell v. Tippett , 256 S.W. 620 ( 1923 )

We need not determine whether the court might properly have dismissed the suit as he did for want of necessary parties plaintiff, had it appeared in any way he had a right to consider that the cause of action set up in appellant's pleadings was in favor of a partnership of which he (appellant) was a member, for it did not so appear. Instead, it appeared from the allegations in said pleadings that the cause of action was in appellant's favor alone, and we have not found in the record anything the court had a right to consider showing to the contrary. It is assumed, because there is nothing better in the record on which to base it, that the action of the court was predicated on an affidavit made a part of a motion for a new trial filed by appellees May 6, 1922, and granted the same day, indicating that Tippett's rental contract might not have been with appellant alone, but might have been with him and W. P. Martin and wife as partners. The affidavit had served the purpose for which it was filed when the motion for a new trial was granted, and was not entitled to consideration in connection with the motion to dismiss. James v. Doss (Tex.Civ.App.) 184 S.W. 623.

The judgment was not warranted by anything appearing in the record sent to this court. Therefore it will be reversed, and the cause will be remanded to the court below for a new trial.