De Garcia v. San Antonio & A. P. Ry. Co.

• Decision Date: 11 November 1903
• Citation: 77 S.W. 275
• Parties: DE GARCIA v. SAN ANTONIO & A. P. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

77 S.W. 275

DE GARCIA v. SAN ANTONIO & A. P. RY. CO.^*

Court of Civil Appeals of Texas.

November 11, 1903.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Suit by Josephine De Garcia against the San Antonio & Aransas Pass Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

C. L. McGill and A. E. Heilbron, for appellant. Houston Bros. and R. J. Boyle, for appellee.

FLY, J.

This is a suit instituted by appellant to recover damages for the death of her husband, and to set aside a judgment. Special exceptions were sustained to the petition, and, appellant refusing to amend, the cause was dismissed.

Appellant, after setting up her cause of action against appellee on account of the death of her husband, Alcario Garcia, alleged that he left surviving him, by a former marriage, two minor children, named, respectively, Concepcion and Leonides Garcia; that on January 11, 1902, they had, in the same district court in which appellant had sued, through their next friend, Augustine Trinidad, instituted a suit for their damages, and had in bad faith joined appellant in the suit, without her knowledge or consent. Fraud and collusion were charged against the minors and the appellee to defeat the claim of appellant. It was alleged that in furtherance of the fraud the minors made the following allegations in their petition: "Plaintiffs show that, several years prior to his death, Alcaria Garcia was married to Josephine De Garcia, in the town of Luling, Caldwell county, Texas, and that the place of residence of the said Josephine De Garcia is unknown to these plaintiffs, but they are informed and believe that she resides in the county of Travis, state of Texas; that the said Josephine De Garcia and Alcario Garcia lived together at intervals, off and on, up to and about the 28th day of August, 1899, when the said Josephine De Garcia left the bed and board of the said Alcario Garcia, and went to live with others, and had not lived with him since said date; that the said Alcario Garcia has not contributed to her maintenance or support, and at the time of his death the said Josephine De Garcia was not receiving and would not have received any pecuniary aid from him, the said Alcario Garcia, had he lived, and had not received any pecuniary aid from him for more than two years prior to his death; that the said Josephine De Garcia is joined herein as plaintiff in order that it may be judicially determined whether or not she is entitled to a part of the damages, and for the purpose of having her rights finally adjudicated. Plaintiffs further show unto the court that they bring this suit for their own use and benefit, as well as for the use and benefit of Josephine De Garcia and all others entitled to any right or interest in the cause of action asserted in this suit." The allegations as to abandonment of her husband by appellant, and that he had not contributed to her support, are alleged to be false, and the petition proceeds as follows: "This plaintiff specifically denies that she was joined as plaintiff in said suit in said cause No. 13,362 in good faith, in order to judicially determine whether or not she was entitled to a part of the damages, and for the purpose of having her rights finally adjudicated; and so denies that the plaintiffs in said cause No. 13,362 brought said suit in good faith for the use and benefit of Josephine De Garcia, this plaintiff, and all others entitled to any right or interest in the cause of action asserted in said suit, as well as for their own use and benefit. But this plaintiff now believes, and, so believing, here charges the fact to be, that said suit in said cause No. 13,362 was brought by said parties plaintiff in bad faith, with the fraudulent purpose and intent, in collusion with defendant and others, as aforesaid, by means of grossly false and willful misrepresentations of fact, of practicing deception and fraud upon the court, thereby misleading it to render a judgment that should operate a bar and forever conclude this plaintiff in the courts of the country from any and all pursuit of any claim for damages, however just and equitable, for the wrongful death of her said husband, the said Alcario Garcia, so caused and brought about by the negligent acts of defendant as aforesaid. Plaintiff, further complaining, avers that, having no notice or knowledge of any kind whatsoever of the institution of said suit in said cause No. 13,362, she did not appear in said cause, nor did she authorize any other person to appear for her or in her behalf; that said suit was instituted and the proceedings had therein wholly without her consent and knowledge; and that such proceedings so had therein, and said judgment so rendered therein, were, as to this plaintiff, entirely and absolutely without her consent, knowledge, or authority, ex parte, and, for the fraud therein, void." It was alleged that in furtherance of the fraudulent design a judgment was obtained in the district court on February 7, 1902, before the court without a jury, in favor of the minors, for $2,000, but the judgment as to appellant was as follows: "But it appearing to the court from the evidence that the plaintiff Josephine De Garcia had not for more than two years prior to the death of Alcario Garcia received any pecuniary aid from him, and was not receiving any pecuniary aid from the said Alcario Garcia at the time of his death, and would not have received any pecuniary aid from him had he lived, the court is of the opinion that the said Josephine De Garcia should take nothing by reason of this suit. Wherefore it is ordered, adjudged, and decreed by the court that the plaintiff Josephine De Garcia take nothing by reason of this...