Mrs. E. C. Hess v. R. C. Webb et al., 103 Tex. 46

Mr. Chief Justice Gaines delivered the opinion of the court. This suit was brought by Webb and others, defendants in error, to recover of Mrs. Hess, plaintiff in error, eight-ninths of 73.4 acres of land. The defendant pleaded not guilty and the statutes of limitation of three, five and ten years. The judgment being against Mrs. Hess, she alone appealed to the Court of Civil Appeals, by whom the judgment was affirmed.

The first specification of error in the application for the writ of error is that “the said Court of Civil Appeals erred in its opinion on appellee’s motion for rehearing in holding that the judgment of the trial court, in so far as it establishes the title of some of the plaintiffs against the defendant, Mrs. Hess, for their respective interests should not be reversed, and that the verdict' of the jury, which was against Mrs.

Hess on her plea of limitation should not be disturbed.” Then follows six reasons assigned why the opinion of the Court of Civil Appeals is erroneous, only two of which apply to the same point. Should we undertake to consider this assignment we should have to discuss the charge of the court as given; its refusal to give special charges; the evidence of Mrs.

Hess’ adverse possession of the property; the effect of the defenses upon the parties who originally filed the suit and upon those who came in subsequently; the effect of a verdict in favor of her codefendants; and generally that the verdict of the jury was contrary to the evidence adduced upon the trial and was 'therefore not a just and proper verdict. We are of the opinion that we can not consider the assignment without violating the rules of the court. The three other assignments in the application for the writ of error relate to the same question and may be considered together.

The first is that the court erred in holding that the judgment in favor of A. T. Hughes, J. D. Hughes, Mary Brantly, 'Cora Durbridge, Carrie Rositer, Howard Risher, William Webb, Robert Webb, Ora West, Ella Taylor, Minnie Woodward, R. C.

Webb, Rufus Webb and Hattie Everett should be so reformed as to allow them to recover the one-eighth interest of their ancestors, and so reformed should be affirmed, “because, first, as hereinbefore shown the rights of the parties have not been rightfully, properly and legally adjudicated; and second, because the record clearly and distinctly shows that Ora West, Ella Taylor, Minnie Woodward and Hattie Everett, who came into the suit May 13, 1905, were unquestionably barred by the statute of limitation, and should not have been permitted to recover,” etc.

These objections to the ruling of the court take us back to the question of limitation as to the whole case and also to the question of limitation as to Ora West and others—which we have refused to consider because not distinctly assigned. For the same reason we decline to consider them here. The question of limitation as to all of the plaintiffs and that of limitation ás to Ora West and others are two questions.

The second of these three assignments is that “the Court of Civil Appeals erred in holding that ‘insofar as the judgment disposes of the interests of those claiming to be heirs of the other children of Polly Webb and decrees a partition it should be reversed and the cause remanded,’ because, first, applicant, Mrs.

Hess, is entitled to have the whole judgment reversed, and the whole case remanded for another trial, so that the issues involved may be fairly, properly and legally determined, and second, because as the Court of Civil Appeals correctly held in its original opinion ‘if any of the parties to the suit were barred of their right by the statutes of limitation such right did not enure to the benefit of the other plaintiffs, but appellant should have recovered such interest upon her plea.’ ” In regard to these objections to the action of the court we may observe we have been unable to determine from the state of the record, that the rights between Mrs.

Hess and the parties who first brought suit, have not been “fairly, properly and legally determined.” As to the second ground of objection we may say, that the action of the court was largely in its discretion. Where, as in this case, the amount of land in controversy is very small - and the claimants are very numerous, and the evidence somewhat unsatisfactory, the court may, in its discretion, properly affirm as to those whose rights have been properly determined and reverse and remand as to those whose evidence appears to be insufficient.

The third of these assignments is the fourth in the petition for the writ of error and is as follows: “Whenever in the trial of a suit, such as this is, it becomes apparent that there are part owners of the property involved, who are not parties to the suit, the trial should be suspended until such part owners are brought before the court, and unless this is done no valid judgment can be rendered, and one entered without such parties should be reversed.” The rule is, that all persons having an interest in a litigation should be made parties. But this is a general rule and to it there are exceptions. (Bailey v.

Morgan, 13 Texas, 342.) Indeed, some of the authorities go so far as to say, that it is discretionary with the trial court. The proposition announced in the assignment has been held by this court in cases of this character; but these usually have been cases where the persons not made parties to the suit are within the jurisdiction of the "court and are not numerous. It is a safe and salutary rule and one which tends to prevent the multiplicity of suits which our system abhors.

But where the claimants in an action of trespass to try title against an acknowledged eotenant are numerous and it appears that possibly some of these who, under the plaintiffs’ theory of the case, are entitled to recover, reside in another State, a different rule should prevail. One tenant in common may sue another to establish his interest in land and may recover a judgment for his admission into joint possession, or he may sue for partition where all the tenants in common must be parties.

Consequently where in a case of this character it is developed that parties may have been omitted from the petition, why not disregard them, and permit the plaintiffs to proceed to judgment for their own interests in the land? (See Story’s Eq. Pldg., para. 79a.) Finding no error in the proceedings which led to the judgment, it is affirmed. Affirmed.