Albert C. Horton v. Morgan C. Hamilton, 20 Tex. 606

Wheeler, J. The principal question upon, which the case was decided in the Court below, and the question upon which its decision in this Court depends, is as to the effect of the former judgment, pleaded by the plaintiff in bar of the defendant’s right. That judgment was rendered in a proceeding upon an application by Horton to the District Court of Travis county for a peremptory mandamus to the Surveyor to survey the land for him.

The Surveyor controverted the right of the plaintiff to require him to make the survey ; and one of the grounds of objection was that there had been a previous survey of the land for one Rowe. Hamilton, without having been made a party to the proceeding by the service of process upon him, or otherwise, came into Court and filed an answer to the petition for mandamus, objecting various grounds of insufficiency in the petition as a reason why a mandamus should not issue, and claiming that he is entitled to the land by virtue of the certificate and survey made for Rowe.

The Court upon the hearing refused the mandamus and dismissed the proceeding. Was this an adjudication upon the merits of the title as between these parties ? We think clearly not. A mandamus is not the mode of trying title to land. It is only where the right or title is not litigated, or has been adjudicated, that the party may proceed by mandamus against the officer. (Comm, of the Gen’l L. O. v. Smith, 5 Tex. R. 471.) Hamilton was not properly a party to the proceeding by mandamus. He had not the right to make himself a party for the purpose of putting the title in issue in that case.

His intervention could not convert the proceeding against the Surveyor into an action against the petitioner of trespass to try title. That action must have been brought in the county where the land lay, against the tenant in possession. (Ib.) A party to the suit, in the sense in which that term is applied to a former judgment pleaded in bar, is one who is directly interested in the subject matter, and had a right to make defence, or to control the proceedings. (1 Greenl. Ev. Sec. 523.) Hamilton had no such right; he was not a party to the proceeding in that sense.

To render the judgment conclusive upon those who are properly parties to it, it is essential that its operation be mutual. Both the litigants must be alike concluded, or the proceedings cannot be set up as conclusive upon either. If a mandamus had been awarded, it would not have concluded the right of Hamilton; because his title was not the subject matter of the litigation; that was the right of the plaintiff to a peremptory mandamus ; and however decided, it could not affect the ultimate right of Hamilton, if his was the better right to the land.

The principle upon which judgments are held conclusive upon the parties, requires that the rule should apply only to that which was directly in issue, and not to everything which was incidentally brought into controversy during the litigation. (Id. Sec. 528.) The rule applies only to what was directly in issue and determined by the judgment; and it must have been a decision upon the merits. (Id. 29, 30.) There was no decision upon the merits of the title, as between these parties.

It cannot be pretended that the mere refusal of the Court to make the rule absolute, for a mandamus, was an adjudication upon the merits of the title or ultimate right of either of the parties. One of the grounds of objection interposed by Hamilton to the mandamus was, that the Court in Travis county had not jurisdiction, because the lands were situated in another county.

Another was, that the applicant showed by his petition, that he already had a survey of the land; that, consequently, there was no necessity for a survey; and that was one of the grounds on which the judgment refusing a mandamus was affirmed by this Court. (Horton v. Pace, 9 Tex. R. 81.) The refusal to award a mandamus manifestly was not an adjudication upon the merits of the title, and the judgment, consequently, is not conclusive upon either party, upon the question of title. The judgment is therefore reversed and the cause remanded. Reversed and remanded.