T. T. Ewell et al. v. J. W. Anderson, 49 Tex. 697

Gould, Associate Justice. Amongst the papers of this cause, we find a motion to dismiss, marked “ filed March 26, 1875,” but which was never entered on the motion docket, or called to the attention of the court, and consequently has remained undisposed of.

The case appears to have been brought here on the part of Allen and wife, by giving notice of appeal and making affidavit that they were “ too poor to give the .appeal bond required by the statute, conditioned for the prosecution of the appeal with effect, and performing the judgment, sentence, or decree of the Supreme Court in case the decision of said court should be against appellant, or to give security for the costs and damages of the appeal, as was required by the statute.” This affidavit is not in compliance, with the statute; (Green v.

Martin, 43 Tex., 653;) aiid the appeal never having been perfected, the motion to dismiss' must prevail, if it were not that the record also shows that a writ of error was prosecuted by another party to the suit. In order to a proper understanding of the question as to the right of that party to prosecute a writ of error, it will be necessary to give a history of the case. J. W. Anderson brought, in June, 1872, this suit against J. T. Allen and T. T.

Ewell, claiming to be the owner of a. certain lot and improvements in the town of Granbury, seeking to recover possession and to remove the cloud on his title growing out of a deed of trust to said lot made by Allen to Ewell.

The case stated in the petition ■was: That Allen, in 1871, bought the lot at a sale of lots in Granbury had by the county authorities under the statute, gave his two notes to the county, each for $77.50, in payment, and received a certificate of purchase showing that he was to receive title on payment of said notes; that on February 15, 1872, Allen sold said lot and improvements to plaintiff Anderson, and transferred to him the certificate of purchase, and that on the same day Anderson paid the notes and received the title from the county; that afterwards, on September 25, 1872, Allen, colluding with Ewell, made him a deed of trust on the property sold previously to Anderson.

A writ of sequestration was sued out and levied, and the property was replevied by Allen and Ewell. Subsequently, the plaintiff amended, setting up yet another instrument, executed and delivered to him by Allen, also on February 15, 1872, asking the court, in the event it should hold that this last instrument operated to make the transaction between him and Allen a mortgage, to decree its foreclosure.

In the meantime, both Allen and Ewell had filed voluminous pleas to the action as originally brought, including claims for damages for wrongful suing out the sequestration Ewell had also set up his deed of trust, and asked the court to adjudicate in his favor that the claim of Anderson was fraudulent; and, further, that his deed of trust was entitled to precedence, having, it'was claimed, been taken without notice of- Anderson’s rights.

It should be remarked, that the first writ of sequestration appears to have been set aside or abandoned, and another one sued out, and the property again replevied; that after it was a second time repleviéd Anderson appears to have taken possession under some other legal proceeding, in the nature of forcible entry, but was compelled by order of court to return the property replevied. In the pleadings of Ewell he alleged these various proceedings in reconvention, claiming damages.

He also excepted to the original and amended petitions on various grounds, claiming that the two proceedings—to foreclose a mortgage and to recover as in trespass to try title—could not be joined in one suit; praying that plaintiff’s suit be dismissed, or that plaintiff be required to proceed on only one of his two causes of action.

The record recites, that on hearing defendant’s exceptions the court adjudged that the plaintiff held only a mortgage, and that “thereupon plaintiff dismissed as to defendant Ewell.” By bill of exceptions, it appears that “the exceptions of defendant Ewell to plaintiff’s action were sustained, and plaintiff’s suit was dismissed as to said Ewell.

Whereupon said defendant asked leave to proceed with the trial of the cause as made out by his plea in reconvention, praying that his deed of trust set up be confirmed, and for damages against plaintiff' in this behalf; to which plaintiff objected, and the objection was sustained by the court; to which defendant Ewell excepted.” Ewell having thus been disposed of, the cause proceeded to trial between Anderson and Allen at the same term, resulting in a judgment in favor of Anderson enforcing his mortgage lien.

A new trial, however, was granted, and the wife of Allen intervened, claiming that the lot was her homestead ; but the result of the second trial was to negative that claim, and, as on the first trial, to give. Anderson judgment foreclosing his mortgage.

Erom this judgment Ewell, proceeding in his own name alone, without joining Allen, sued out a writ of error, giving a supersedeas bond, and he it is who files the transcript, and, although errors are assigned by appellants as well as by him, it is he only who appears here by brief. ¡Nothwithstanding the fact that the final judgment does not name him, and purports to be between Anderson and Allen and wife only, it is our opinion that the judgment dismissing the suit as to Ewell, and refusing to allow him to prosecute his plea in reconvention, was, if erroneous, such an error as he was entitled to have revised, and that for that purpose he must be regarded as a party to the final judgment.

Ewell gave a supersedeas bond, and in all things complied with the essential requirements to entitle him to a writ of error, and our opinion is, that the motion to dismiss should be overruled. It is, further, our opinion that the court erred in refusing to allow Ewell to prosecute his claim for affirmative relief and ■ for damages. Treating Anderson’s suit as maintainable only as a suit to foreclose a mortgage, it was still proper that Ewell, who claimed to have a superior lien on the same property, should be allowed to have that question adjudicated.

If it be true, as alleged, that he was In possession, then he was a necessary party; otherwise his possession could not be disturbed by the purchaser at the foreclosure sale. Looking at the exceptions of Ewyell, we find nothing in them to justify the conclusion that he at any time asked or assented to such a disposition of the case as was made by the court. Ewell was a proper party, and by the action of the court he was precluded from having in this cause that adjudication of his rights to which he was entitled. That this action of the court was erroneous, is plain.

Whether it is such an error as to infect all the subsequent proceedings and the -final judgment, and to give to Ewell the right to have the cause placed back where it was when the error was committed, is the question. Our opinion is, that it is such error, and that Anderson, who is responsible for the error, cannot complain because of its results. Had the final judgment been in favor of Allen, it would seem harsh to set it aside for an error not properly chargeable to him. But of course Allen and wife are not prejudiced by the reversal of a judgment against them.

We have disposed only of those errors which Ewell rightfully assigned, leaving other questions untouched. The judgment is reversed and the cause remanded. . Reversed and remanded.