R. B. Reagan v. B. C. Copeland, 78 Tex. 551

HENRY, Associate Justice. —Copeland sued Reagan for the value of certain personal property which he charged was taken from his possession by Reaganas United States marshal for the Eastern District of Texas, under an execution issued out of the United States Circuit Court upon a judgment against other parties. The petition charged that plaintiff owned the property and that it was not subject to the writ under which it was wrongfully taken. The defendant answered and applied for a continuance, which was refused.

After bis application for a continuance was overruled the defendant and a number of other persons who, it was alleged in the pleading, had obtained separate judgments against the party who was the defendant in the: execution levied by the marshal, filed a pleading representing that they had sued out executions which had been levied by the marshal on the property in controversy; that they had made to the marshal bonds of indemnity with certain persons as their sureties, who also joined in the pleadings, binding themselves to protect the marshal and defend him in any suit brought against him- for levying upon the said property.

These parties waived process, submitted themselves to the jurisdiction of the court, prayed to be treated as defendants, adopted the pleadings of Reagan, and prayed for the entry over against themselves of any judgment rendered against Reagan. The court, upon the objection of the plaintiff, refused to permit them to be made parties defendant. Upon the verdict of a jury judgment was rendered in favor of plaintiff, and the defendant Reagan appealed.

The record contains no statement of facts, but certificates and affidavits have been filed here showing that one was prepared and submitted to the district judge by the attorneys of appellant before the adjournment of the term of the court at which the judgment was rendered. They show that the failure to file a statement of facts was the result of the unexplained omission of the district judge, and was not in any manner the fault of appellant's attorneys.

Appellant for the first time suggests in his brief filed in this court that the judgment should be reversed because of the failure of the judge to approve a statement of facts. If we could reverse a judgment for that cause, we would not feel justified in doing so unless the objection was made by an assignment of the error filed in the District Court, Because of the want of an assignment we can not now consider that question.

We suggest that in any case of the refusal of the district judge to approve a statement of facts the proper practice for the aggrieved party is to apply to this court without delay for the writ of mandamus. Appellant assigns a number of errors relating to the action of the court in giving and refusing charges, which in the absence of a statement of facts we can not consider. The application for a continuance was properly overruled.

Article 1209 of the Revised Statutes provides that: “Before a caséis called for trial additional parties may, when they are necessary or proper parties to the suit, be brought in by proper process either by the plaintiff or the defendant upon such terms as the court may prescribe; but such parties shall not be brought in at such time or in such a manner as unreasonably to delay the trial of the case.” If it be conceded that under another statute the United States marshal may cause the signers of indemnity bonds to be made parties defendants, as sheriffs and their deputies and constables may be (Sayles’ Texas Oiv.

Stats., art. 4525a), which we do not now decide, it must be admitted that the right to do so is subject to the requirement that it must be done “ before the case is called for trial.” After that it is too late to bring in new parties if objection is made. The fact alone that it is not apparent that any delay will be caused thereby is not sufficient ground for disregarding an express provision of the statute on the subject.

Coming in when they did/and adopting the officer’s pleadings as they proposed to do in this case, without filing any of their own or making any new issue, and being represented by the same attorneys, it is evident that the proposed defendants could make for the officer no defense that he could not equally well make for himself. The judgment must be affirmed. Affirmed. Delivered December 19, 1890. Motion for rehearing refused at Galveston, January 13, 1891.