For reasons hereinafter stated, I think defendants in error's motion for rehearing should have been sustained, and the judgment below reformed and affirmed. My dissent is alone with reference to the disposition of the case. Plaintiff in error's liability and the matter to be decreed being certain, instead of remanding the cause, I think the judgment below should have been reformed and affirmed in accordance with the undisputed facts; that is, in favor of C. A. Kelsey, the husband, against plaintiff in error, for the amount ascertained to be due on the cause of action asserted.
The petition reveals that Mrs. E. G. Kelsey and C. A. Kelsey are married, and that the debt sought to be recovered belongs to their community estate. The case is not to be assimilated to one where the wife sues without alleging grounds entitling her to prosecute the suit alone; for in such a
case, the husband being a necessary party, the failure to bring him in would present fundamental error, as held in Western Union Tel. Co. v. Owings (Tex.Civ.App.) 38 S.W.2d 831, and in Barmore v. Darragh (Tex.Civ.App.) 227 S.W. 522. But where the husband and wife are named in the petition as plaintiffs, although the husband is described as a party "pro forma," unless his appearance in that capacity is in some form challenged at the trial, it is considered neither harmful nor reversible error. In the following cases, the question of misjoinder, in some form, was presented at the trial, was overruled by the trial court, and on appeal was held reversible error: See Texas C. Ry. Co. v. Burnett, 61 Tex. 638; Wartelsky v. McGee, 10 Tex. Civ. App. 220, 30 S.W. 69; Ezell v. Dodson,60 Tex. 331; Yellow Cab, etc., Co. v. Smith (Tex.Civ.App.) 30 S.W.2d 697; Texas P. Ry. Co. v. Bailey, 83 Tex. 19, 18 S.W. 481; National Life, etc., Co. v. Casas (Tex.Civ.App.) 36 S.W.2d 323.
In the instant case, as reflected by the petition, Mr. and Mrs. Kelsey sued to recover a community debt; the husband being as plaintiff "pro forma." With these matters apparent of record, plaintiff in error at the trial failed by any appropriated plea or proceedings to challenge either the capacity of Mrs. Kelsey to sue or the pro forma capacity of Mr. Kelsey, raising the question for the first time by an assignment of error.
While it is true the matter complained of presents error, yet I think the question should have been raised at the trial, and, failing in this, on the contrary pursuing a lying-in-wait policy, plaintiff in error is in no position to ask that the case be remanded simply to make plain the capacity in which Mr. Kelsey joined in the suit. I am not without authority for this position. 23 Tex.Jur. p. 330, § 286, announces the following doctrine: "* * * While the husband's power to bring suit for the recovery of community property is ordinarily exclusive, and the wife's right to bring such suit is exceptional and is permitted only where there is great necessity for it — as abandonment, adversity of interests and the like — still her improper joinder with the husband is usually harmless and can be reached only by a timely plea. The mere failure or refusal of the husband to sue will not authorize the wife to sue, unless it be an exceptional case, as abandonment, conflict of interest, bad faith and the like * * *."
The improper joinder of the wife with the "pro forma" joinder of the husband is usually considered harmless and can be reached only by a timely plea or proceeding at the trial. Dealing with a similar situation presented in Galveston, etc., Co. v. Baumgarten, 31 Tex. Civ. App. 253,72 S.W. 78, 80, 81, the court said: "This is not a suit brought by the wife, in which the husband is joined pro forma, but it is a suit prosecuted jointly by husband and wife, and, had exceptions been presented in the trial court to the wife being joined in the suit, the exceptions should, and doubtless would, have been sustained by the trial judge. But no such exceptions were presented, and the question is raised for the first time in the appellate court. In a similar case to this, where the husband and wife had joined to recover damages sustained by the wife, it was said by the supreme court: `In actions to recover money which will be community property when realized, the wife is not ordinarily a necessary or proper party; but in this case no objection was taken to her joinder with her husband as a plaintiff, and it cannot be raised here for the first time. No injury results to the appellant from the rendition of a judgment in favor of the husband and wife.' San Antonio Street Railway Co. v. Helm, 64 Tex. 147. It was further held in that case that, if no injury is shown to have resulted, a judgment will not be reversed even where an exception to the joinder of the wife with the husband has been overruled. See, also, Lee v. Turner, 71 Tex. [264] 265, 9 S.W. 149, Middlebrook Bros. v. Zapp, 73 Tex. 29, 10 S.W. 732, and Johnson v. Erado (Tex.Civ.App.) 50 S.W. 139." In Breckenridge, etc., Co. v. Hutchens (Tex.Civ.App.) 260 S.W. 684, the court held that, while a married woman was without capacity to sue as next friend for her son, the question as to her want of capacity could only be raised in the trial court by a proper plea, and answering the merits without having filed such plea constituted a waiver. A case by the Supreme Court very much in point is Edrington v. Newland, 57 Tex. 627, 634. The husband and wife jointly sued and recovered damages on a cause of action belonging to the community. The Supreme Court, in an opinion by Judge Walker, said: "The judgment ought to have been rendered solely for the defendant H. S. Newland, and not jointly for him and his wife, notwithstanding she joined in the suit claiming damages in the
supplemental petition in which she and her husband reconvened. The joinder of Mrs. Newland in the special answer above indicated in no wise adds to the legal right of her husband to recover in respect to the facts and matters therein alleged, and that answer does not set forth any special ground of action in behalf of her separate property or personal rights which would render it essential or proper that she should become a party defendant in this action. The damages claimed in the answer of Mrs. Newland and her husband are alleged to be such as were the consequence of the plaintiff's illegal dispossession by sequestration in this suit of the defendant H. S. Newland and his family. He, then, as the marital head of the community, was plainly the only necessary or proper party to sue for and recover damages for such injuries. See Cannon v. Hemphill,7 Tex. 184 ." Accordingly, the judgment appealed from was by the court reformed and affirmed. A later case, that of Middlebrook Bros. v. Zapp,73 Tex. 29, 31, 10 S.W. 732, 733, was where the husband and wife jointly sued to recover on a cause of action, which, as revealed by the facts, belonged to the community but alleged to be the separate property of the wife. Citing with approval Edrington v. Newland, supra, the Supreme Court used language in point, as follows: "The Middlebrooks and C. W. Meyer, as the representative of the community estate of himself and wife, owning the goods, the cause of action was theirs. Mrs. Meyer, owning no separate estate in the goods seized, had no cause of action for damages done her separate property. If this suit had been to recover damages to the community property, she would have been an unnecessary and improper party; and exceptions to the petition on that ground, if made, ought to have been sustained, when she could have been dismissed by amendment. If not excepted to, her misjoinder would not necessarily have been fatal to plaintiffs' suit, if the cause of action declared upon had been alleged to belong to the community estate. Edrington v. Newland, 57 Tex. [627] 634." And in the recent case of Houston Electric Co. v. Potter, 51 S.W.2d 754,759 (application dismissed), the Galveston Court of Civil Appeals, considering a similar question, said.: "The facts were fully pleaded, the husband was a party plaintiff, and actively participated in prosecuting the suit to judgment. The recovery by husband and wife was for, and bound, the community. The words `pro forma' as used in the petition, and an apparent allegation of a right of a recovery by the wife, in absence of exceptions and after verdict and judgment, are mere surplusage. Since W. D. Potter, the husband, joined his wife in filing the suit for damages for personal injuries to the wife, and obtained from the court a judgment in favor of the husband and wife, a sum of money for such injuries, the husband is estopped by such judgment from maintaining another suit on such cause of action."
So, as held in the case just cited, I am of opinion that the designation of C. A. Kelsey as plaintiff "pro forma" should be held mere "surplusage," as the undisputed facts show that he was not a mere "pro forma" party, but a real necessary party, and that his designated capacity as "pro forma" should be ignored as the erroneous conclusion of the pleader. The debt sued for in the instant case belongs to the community of Mr. and Mrs. Kelsey, for the recovery of which the husband and not the wife should have obtained judgment. But I do not think anything worthwhile would be accomplished by a remand of the case; on the contrary, such disposition of the case will delay the finale and result in the creation of additional costs. Therefore, in line with the holding of the Supreme Court in Edrington v. Newland, supra, I believe the judgment below should have been reformed and affirmed by rendering judgment in favor of C. A. Kelsey against plaintiff in error for the amount of the indebtedness ascertained to be due the community. Such a disposition, in my judgment, would be in accord with the authorities, afford protection to plaintiff in error against double recovery, and fully meet the ends of justice.