Gentry v. McCarty

• Decision Date: 18 November 1911
• Citation: Gentry v. McCarty, 141 S.W. 152 (Tex. App. 1911)
• Parties: GENTRY et ux. v. McCARTY.
• Court: Texas Court of Appeals

Page 152

141 S.W. 152

GENTRY et ux. v. McCARTY.

Court of Civil Appeals of Texas. Amarillo.

November 18, 1911.¹

Appeal from Floyd County Court; F. P. Henry, Judge.

Action by D. T. Gentry and wife against J. F. McCarty. From a judgment dismissing the cause on defendant's appeal from Justice Court, plaintiffs appeal. Reversed and remanded.

T. F. Houghton, for appellants. A. L. Love and J. B. Bartley, for appellee.

HALL, J.

This action originated in the justice court of Floyd county and was based upon an account for work, provisions, and board. The account is drawn up in favor of D. T. Gentry and wife, and the several items therein are sugar, coal, flour, coffee, etc., and one item as follows: "Services of Mrs. D. T. Gentry for attending to rooms and waiting on J. F. McCarty and his son and company six months and one-half beginning November 13, 1908, $39.00." The total amount claimed to be due is $136.98. A trial in the justice court resulted in a judgment for plaintiffs in the sum of $70, from which appellee, McCarty, appealed to the county court. Before the trial and in the county court for the first time McCarty excepted to the plaintiffs' account, on the ground that it showed a misjoinder of parties plaintiff, in that the cause of action is for community property, and "any judgment that might be secured herein would be community property. Wherefore defendant says that there is a misjoinder of parties plaintiff and this suit should be abated." To this exception the defendant excepted upon several grounds, not necessary to recite here. Appellants' exception was filed October 27, 1910. On the same day the court overruled the plaintiffs' exceptions to the defendant's plea in abatement, to which plaintiffs excepted. It seems that no judgment was entered upon the merits, however, but on the following day plaintiffs filed a motion for a new trial, which was on the same day overruled. From a bill of exception, presenting matters of record, it seems that on the 2d day of November defendant filed what is called "First Amended Exception and Motion to Abate," but which the court ordered filed as of date October 27th. In this amended exception the defendant raises the issue that the cause of action as amended by defendant's oral pleading declaring that the item of $39, above set out in full, was the separate property of Mrs. Gentry, was setting up a new cause of action to said item; that the pleading showed on its face the misjoinder of parties, in that it appeared therefrom that plaintiffs were suing on a community demand for $95.48, and $39 as the separate property of Mrs. Gentry and a misjoinder of causes of action for the same reason; that therefore Mrs. Gentry was neither a necessary nor proper party in ...