Birmingham v. Griffin

• Decision Date: 01 January 1874
• Citation: 42 Tex. 147
• Parties: H. BIRMINGHAM ET AL v. W. E. GRIFFIN ET AL.
• Court: Texas Supreme Court

42 Tex. 147

H. BIRMINGHAM ET AL

v.W. E. GRIFFIN ET AL.

Supreme Court of Texas.

1874.

APPEAL from Cass. Tried below before the Hon. James H. Rogers.

On 21st March, 1871, Hardy Birmingham brought suit in his own name for the use of his sons, G. C. and W. P. Birmingham, to establish a boundary line between the lands of plaintiffs and W. E. Griffin et al., and for rents.

The defendants, at return term, demurred, and pleaded not guilty.

March 7, 1872, G. C. and W. P. Birmingham filed supplemental petition, showing that in 1866 their father, Hardy Birmingham, had conveyed the lands to them, part to one and part to the other; showing that only Wm. P. Birmingham was interested in the lands in controversy from the uncertainty of the division line.

Defendant to the supplemental petition excepted on account of misjoinder of parties plaintiff, and pleaded to the merits.

The court sustained the exceptions, and dismissed the petition. Motion for new trial was urged, but by the court overruled so far as the suit affected the title to the land.

Plaintiff excepted and appealed.

W. L. Crawford, for appellant, cited Hurd v. Lockett, 20 Tex., 162;Hollis v. Bordea, 10 Tex., 364;26 Tex., 558;19 Tex., 142;Johnson v. Davis, 7 Tex., 173; Emmons v. Ogden, 7 Tex., 175.

O'Neal & Vaughan, for appellees.

MOORE, ASSOCIATE JUSTICE.

Hardy Birmingham, in whose name this suit was originally brought, had no interest whatever in the matters in controversy in it. His petition shows that he was not asking the interposition of the court for his own benefit, but for the use of other parties, who, if interested in the matters alleged in the petition, should have brought the suit in their own names. (30 Tex., 158.) But although the suit was improperly brought in the first instance, the irregularity and improper manner in which it was commenced might, under our liberal system of pleading, have been cured by an amendment by the real party in interest making himself a party to it, and a discontinuance as to the original and nominal party by whom it purports to have been brought, at the costs, however, of the plaintiff to the making of the amendment, if claimed by the defendant.

This seems to have been attempted by the supplemental petition filed by the parties for whose use the suit purports in the original petition to have been brought. But the supplemental petition is also subject to substantially the same objection. It is a joint action. The prayer is for a joint judgment, yet the petition on its face shows that only one of the petitioners is interested in the matter in controversy, and that the other is an improper party to...