M. H. Lauchheimer & Sons v. G. Y. Coop, 99 Tex. 386

BROWN, Associate Justice. In 1897 Lauchheimer & Sons had a valid judgment against J. R. Saunders upon which they caused execution to be issued and levied upon the land in controversy, and, on April 20, 1897, Saunders filed a petition in the District Court of Coryell County, alleging that the land levied upon under the judgment aforesaid was a part of his homestead and not subject to sale under the execution. He prayed for a writ of injunction against the sheriff of the county, T. F.

Bryan, and Lauchheimer & Sons; which was granted, and, on a trial in the District Court, judgment was rendered in favor of Saunders upon his claim for homestead exemption, and also perpetuating the injunction against Lauchheimer & Sons. Lauchheimer & Sons appealed from this judgment to the Court of Civil Appeals, and the case being transferred to the Fourth District, was reversed and cause remanded. On the 19th day of January, 1899, G. Y.

Coop, by leave granted by the court, intervened in the cause, alleging in proper form that for a valuable consideration Saunders had at a date prior to the levy of the execution of Lauchheimer & Sons executed and delivered to one Raby, as trustee, a deed of trust to secure a debt due from Saunders to the intervener, Coop, which deed was duly- recorded in Coryell County before the levy of the execution in favor of Lauchheimer & Sons. Wherefore Coop alleged and claimed that he acquired a lien upon the land prior to and superior to that of Lauchheimer & Sons.

The intervener alleged also that on the — day of April, 1897, Saunders conveyed to him the land in controversy in satisfaction of the debt which was secured by the deed of trust thereon, and prayed for recovery of the land against Lauchheimer & Sons and Saunders.

At a trial of the case in January, 1899, upon objection by Saunders and Lauchheimer & Sons, the District Judge excluded from the jury the deed of trust and the deed from Saunders to Coop, and instructed the jury to return a verdict for Saunders and Lauchheimer & Sons against the intervener, which was done, and judgment ivas entered that Coop take nothing as against Lauchheimer & Sons and Saunders. Coop made a motion for a new trial, gave notice of appeal and assigned errors to the action of the District Court, but did not file any brief nor appear in the Court of Civil Appeals.

Judgment was entered for Lauchheimer & Sons against Saunders upon his claim of homestead, and Saunders gave notice of appeal, gave bond payable to Lauchheimer & Sons and Coop, and assigned errors to the action of the court. The Court of Civil Appeals reversed the judgment and remanded the cause in general terms. The opinion did not discuss in any way the issue between Coop and Lauchheimer & Sons.' In 1901, the case was again tried.

The court admitted the deed of Coop, but verdict and judgment were rendered for Saunders against both Lauchheimer & Sons and Coop, again sustaining the claim of Saunders to the homestead. Coop and Lauchheimer & Sons appealed to the Court of Civil Appeals and the judgment of the trial court was reversed and the cause remanded for a new trial.

In its opinion the court held that the trial court correctly construed the intervener’s deed of trust and deed to be superior to Lauchheimer & Sons’ levy, and that the same vested title to Coop to the one hundred acres, if it did not a part of Saunders’ homestead, and that the trial court did not err in so instructing the jury, but no judgment was rendered between Coop and Lauchheimer & Sons.

On the 8th day of August, 1902, the case was again called for trial, but, before entering upon a trial, Lauchheimer & Sons filed a plea in which they pleaded the judgment rendered by the District Court on the — day of January, 1899, in favor of them against G-. Y. Coop, in bar of the action of the said Coop. Saunders also filed a plea setting up a mutual mistake by including the land in controversy in the deed of trust and in the deed to Coop. The trial again resulted in a verdict sustaining Saunders’ claim to the land as a homestead, and Coop and Lauchheimer & Sons again appealed.

That judgment was affirmed by the Court of Civil Appeals of the Third District, and, upon writ of error by this court, was reversed and judgment rendered against Saunders and remanded to the District Court for further trial upon the issues between Coop and Lauchheimer & Sons. July 25, 1904, the case was again called for trial before the district judge, who overruled Lauchheimer & Sons’ plea of res ad judicata and entered judgment in favor of G. Y. Coop against Lauchheimer & Sons and Saunders for the land in controversy, from which judgment the appeal now under consideration was prosecuted.

Coop filed cross assignments in the office of the district clerk attacking the judgment rendered against him, but he did not present them to the Court of Civil Appeals in his brief as required by Eule ISTo. 101 for the government of district courts, which reads as follows: “The appellee or defendant in error may file cross assignments with the clerk • of the trial court when he files his brief, which assignments may be incorporated in his brief and need not be copied in the transcript.

In such case one of the copies filed in the Courts of Civil Appeals shall contain a certificate of the clerk of the trial court showing that it is a copy of the brief filed in his office, and the date of its filing.” By his failure to present the cross assignments of error in a brief in the Court of Civil Appeals he .waived that assignment. T. M. Ry. Co. v. Herbeck, 60 Texas, 602. The judgment entered by the District Court against Coop in favor of Lauchheimer & Sons and J. R.

Saunders was not before the Court of Civil Appeals, and the fact that the question was not presented in such form as to invoke the action of the court is a strong argument in favor of the construction of the judgment that the court did not pass upon that question. But we need not resort to construction nor presumption to arrive at that conclusion, for the Honorable Court of Civil Appeals in its opinion rendered at the time, uses this language:" “The only question in the case is, was the nine acres of land a part of the village or town of G-atesville when the one hundred acres was purchased by appellant?

It can not be said as a matter of law that it was or was not; but the question was one of fact to be appropriately submitted to the jury.” (57 S. W., 70.) It is therefore manifest that the Court of Civil Appeals did not pass upon the matter now in controversy and its judgment of reversal had no reference to the judgment against Coop.

The controversy is reduced to this question,—did the judgment of the Court of Civil Appeals reversing the judgment of Lauchheimer & Sons against Saunders have the legal effect to reverse the judgment ■ of Lauchheimer & Sons and Saunders against Coop, notwithstanding the latter judgment was not considered by the court? We are of opinion that it did not have that effect. There were two distinct judgments in this case upon distinct causes of action; the judgment reversed did not in any way affect the rights of Coop, which were adjudicated by the judgment between him and Lauchheimer & Sons and Saunders. Burleson v.

Henderson, 4 Texas, 60; Bradford v. Taylor, 64 Texas, 171.

In the last case cited the court said: “It has1 been steadily held, in this state, that the reversal of a judgment against two or more defendants on the appeal of one defendant only will operate as a reversal as to all, if the judgment be entire, operating to the prejudice of all the defendants, and not upon distinct and independent matters in which the several defendants are shown to be separately interested.” The converse of that proposition is true, that' the reversal of a judgment against two or more defendants upon the appeal of one of them will not operate as a reversal as to all if the judgments be upon causes of action separate and distinct in which the parties are severally interested.

The rule is specially applicable to the facts of this case. The cause of action which Coop asserted against Lauchheimer & Sons and Saunders was independent of the controversy between Saunders and Lauchheimer & Sons and might have been asserted in a separate suit. The intervention was an independent suit to that extent that if Saunders, the plaintiff in the original suit, had dismissed his case, the intervention would have stood upon the docket as a case to be tried between Coop and the defendants therein. State v. Loan & Trust Co., 81 Texas, 546.

For convenience our liberal practice permits intervention by one who claims the subject of the controversy adversely to both parties to a suit. If, however, the causes of action are distinct, the judgments will be distinct and independent each of the other. State v. New Orleans, 27 La. Ann., 469; Donner v. Palmer 45 Cal., 180. We conclude that the judgment rendered in the District Court on the 8th day of August, 1899, whereby it was adjudged that CL Y.

Coop should take nothing by his intervention against Lauchheimer & Sons and Saunders, remains in.full force and effect, and constitutes a bar to the further prosecution of that claim against Lauchheimer & Sons.

The claim of Saunders to the homestead was disposed of by the judgment of this court when it was here upon writ of error; and, there being no fact to be ascertained to determine the rights of the parties, it is ordered that the judgments of the District Court and Court of Civil Appeals be reversed and judgment be here entered, that Coop take nothing by his suit, and that Lauchheimer & Sons go hence without day. Reversed and rendered.