DocketNumber: No. 2980
Citation Numbers: 3 Willson 475
Judges: White
Filed Date: 11/21/1888
Status: Precedential
Modified Date: 9/7/2021
Opinion by
§ 402. Parties plaintiff; husband may sue alone for damages for injury to wife’s separate property; children of wij'e by former husband not necessary parties in such suit. Appellee brought this suit in his own name and right to recover of appellant damages for property destroyed by fire through the negligence of appellant’s employees in operating its trains. Some of the damages claimed were for the destruction of portions of the realty, as a fence, house, trees, etc. He recovered judgment. On the trial the evidence developed that the realty injured was the property of his wife and her children by a former husband, and that the same was occupied by appellee and said wife and children as a homestead at the time of said fire. Appellant claims that said wife and children are necessary parties plaintiff in this suit, and that because of their non-joinder the judgment is erroneous. Held: The wife and children are not necessary parties. A contrary doctrine was at one time held by this court. [2 App. C. C. § 780.] But that decision was subsequently overruled, this court following the doctrine laid down by the supreme court in R’y Co. v. Zimmerman, 61 Tex. 660 [ante, § 15]. A surviving widow is entitled during her life-time to the exclusive possession and enjoyment of the homestead [Const. art. 16, sec.
§ 403, Illegal evidence; admission of, not reversible error when cause is tried by the judge. When a cause is tried by the judge without a jury, the rule is well settled that, where there is sufficient competent evidence, the judgment will not be reversed on account of the erroneous admission of incompetent evidence. [Melton v. Cobb, 21 Tex. 539; Beaty v. Whittaker, 23 Tex. 526; Smith v. Hughes, id. 248; Clayton v. McKinnon, 54 Tex. 206; 1 App. C. C. §§ 718, 967, 1062, 1195, 1219, 1336.]
Affirmed.