Gist v. Tsesmelis
| Decision Date | 11 June 1941 |
| Docket Number | No. 10968.,10968. |
| Citation | 153 S.W.2d 277 |
| Parties | GIST et al. v. TSESMELIS et al. |
| Court | Texas Court of Appeals |
S. Austin Wier, of Dallas, for plaintiffs in error.
Lloyd & Lloyd, of Alice, for defendants in error.
This suit was filed on November 23, 1936, in the District Court of Jim Wells County, Texas, by Louise Tsesmelis, joined pro forma by her husband, Gust Tsesmelis, against S. F. Gist and R. A. Graddy, residents of Dallas County, Texas, and H. H. Weinert, who was afterwards dismissed and will not be further mentioned or referred to herein, seeking to recover a substantial sum for meals furnished to defendants' employees.
On February 16, 1937, defendants Graddy and Gist filed their plea of privilege to be sued in Dallas County, which plea of privilege was controverted by affidavit and set for hearing on March 10, 1937, on which date the plea was overruled and a default judgment rendered. On the same date defendants' motion to set aside the default judgment was granted; whereupon defendants waived their plea of privilege and entered their appearances. The cause was thereafter set for trial many times, and likewise many times continued, until the 3d day of March, 1940, when judgment was entered for plaintiff Louise Tsesmelis against Gist and Graddy for the sum of $1,808.89, from which judgment Gist and Graddy have prosecuted this appeal by writ of error.
Plaintiffs in error present but one contention, which is to the effect that the petition showing on its face that Louise Tsesmelis is a married woman, that she is joined only pro forma by her husband, and that the suit is for the price of meals served at a cafe operated by her, the judgment should be reversed for want of a necessary party, in that the suit is for community property and can properly be maintained only by the husband.
Unquestionably, the earnings of a cafe operated by a married woman would be community property of herself and husband and a suit to recover the same should be brought by the husband and in his name. The wife would not even be a proper party to such a suit. Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956.
It is ordinarily not sufficient that the husband be made a pro forma party but he must be a real party. Urban v. Field, Tex. Civ.App., 137 S.W.2d 137; Hill v. Kelsey, Tex.Civ.App., 89 S.W.2d 1017.
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Taylor v. Catalon
...the right by proof of an assignment, or otherwise, to recover the whole of the damages. Thomas v. Chapman, 62 Tex. 193; Gist v. Tsesmelis, Tex. Civ.App., 153 S.W.2d 277. In my opinion the defendant should not be permitted to raise, for the first time, in the Court of Civil Appeals the exces......
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Taylor v. Catalon
...pleadings constitutes a waiver thereof and is in effect an admission that the pleading states a cause of action. Gist et al. v. Tsesmelis et al., Tex. Civ.App., 153 S.W.2d 277; Lamar & Smith v. Stroud, Tex.Civ.App., 5 S.W.2d 824; Houston Electric Co. v. Potter, Tex.Civ. App., 51 S.W.2d 754;......
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Picadilly Cafeteria of Waco, Inc. v. Lee
...sufficiently before the court to make the order of nonsuit binding on him. Wade v. Wade, 140 Tex. 339, 167 S.W.2d 1008; Gist v. Tsesmelis, Tex.Civ.App., 153 S.W.2d 277; Bullock v. Englert, Tex.Civ.App., 125 S.W.2d I think the motion for rehearing should be sustained and the cause transferre......
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Tobin v. Laredo Manufacturing Company
...husband or wife sued for the wife's earnings. See, however, Bailey Bros. v. Lochman, Tex.Civ.App., 241 S.W. 626 and Gist v. Tsesmelis, Tex.Civ.App., 153 S.W.2d 277. 8 1 Tex.Jur. 132, Sec. 9 Gist v. Tsesmelis, footnote 7 supra. ...