San Antonio A. P. Ry. Co. v. Evans.

Appellant does not contend that the land was not damaged nor crops thereon destroyed because of a failure on its part to construct its roadbed as required by law, nor does it contend that the sum adjudged against it exceeded the damages to the land and crops. The contention (that is, the only one we think it worth while to discuss) it makes is that appellee was not entitled to recover the damages as determined by the trial court. The contention is based on several minor ones, to wit:

1. That it conclusively appeared from the testimony that appellee owned only an estate for life in the land. Not only did it not, so appear, but, on the contrary, it conclusively appeared that the land belonged to the community estate between appellee and her deceased husband, Mose Evans, and was their homestead at the time he died (seven or eight months before the suit was commenced), and after his death continued to be appellee's homestead. It thus appeared that appellee owned at least an undivided one-half of the land. And if, in the absence, as was the case, of proof of the probate thereof the will of Mose Evans admitted as evidence without objection on appellant's part, should be given effect, it further appeared that appellee also owned, as said Mose Evans' devisee, a life estate in his one-half interest in the land, and was the executrix of the will, independent of control by the probate court.

2. That the suit was by appellee and the other plaintiffs as heirs of Mose Evans deceased, and was not maintainable by them in the absence, as was the case, of an allegation and proof that an administration had not been opened on his estate and that a necessity for such an administration did not exist. The insistence that the suit was by the plaintiffs as heirs is based on an allegation in the petition set out in the statement above, and, we think, is not tenable. The allegation of the plaintiffs that they "are the legal heirs of Mose Evans, deceased," should, we think, be treated as descriptive merely, and not as an allegation of the capacity in which they sued. The allegation following the one quoted, that the plaintiffs "are the owners of the hereinafter described premises and property," we think authorized the proof made by appellee, without objection on the part of appellant, that the land belonged to the community estate between her and her husband. As we understand the ruling of the Supreme Court in Ry. Co. v. Goldman, 87 Tex. 567, 29 S.W. 1062, appellee, as the survivor of the marriage between her and Mose Evans, had a right to recover the damages which accrued during the lifetime of her husband. In that case the husband and wife joined each other in a suit against the railway company for damages to land constituting their homestead and belonging to their community estate, caused by water diverted from its natural course by the railway company. Before the trial the wife died, and the husband was allowed to prosecute the suit —

"over the objection of the defendant to the effect that, since the petition disclosed the fact that the wife left children surviving, and that the cause of action was community property and lid not show the existence of community debts or that the husband had qualified as survivor in community, the children were necessary parties."

The Supreme Court held that the survivor of the marriage had —

"the power of a surviving partner to sue for collect, and preserve the community estate in trust for himself and others interested as creditors, or otherwise, subject to be controlled by court of equity when necessary to protect the beneficiaries."

3. That it appeared that a part of the damages sued for and recovered accrued after the death of Mose Evans. The insistence as to this is that appellee and the other plaintiffs were tenants in common of the land after the death of Mose Evans, and therefore that appellee was not, entitled to recover the entire damages accruing after his death, but only such proportional part thereof as her interest in the property bore to the whole of same. If we thought appellant had a right to make the contention we would sustain it, on the authority of Rowland v. Murphy,66 Tex. 534, 1 S.W. 658, and cases like it. All the owners in common of the property were before the court, and the judgment was that none of them, except appellee, take anything by the suit against appellant. The plaintiffs other than appellee doubtless had a right to complain of the judgment, but they did not. No greater sum than it was liable for having been adjudged against appellant, it has no right to complain under the circumstances, because the adjudication was in favor of one instead of all the parties plaintiff. The contention made that the plaintiffs other than appellee were dismissed from the suit before the judgment was rendered is not tenable. The court was without power to dismiss them, and we think it appears from the judgment that he did not attempt to do so. As we construe the charge and the judgment, what the court did, and had power to do, was to determine that there was no testimony on which a recovery by any of the plaintiffs other than appellee could be based. If he erred in his conclusion, the error was not prejudicial to rights of appellant and it cannot be heard to complain thereof.

Assignments presenting other contentions than those discussed are also overruled.

The judgment is affirmed.