Lee v. Turner

• Decision Date: 22 June 1888
• Citation: 9 S.W. 149
• Parties: LEE <I>v.</I> TURNER <I>et al.</I>
• Court: Texas Supreme Court

9 S.W. 149

LEE

v. TURNER et al.

Supreme Court of Texas.

June 22, 1888.

Appeal from district court, Bell county.

Action by Mrs. L. M. Turner and E. S. Turner, her husband, against Ed. F. Lee, for damages to the separate real estate of the female plaintiff. Verdict and judgment for plaintiffs, and defendant appealed. During the progress of the trial the fact appeared that there was a non-joinder of a co-tenant in common as plaintiff, and defendant requested the court to charge, in effect, that plaintiffs could not recover by reason of such non-joinder, which was refused.

W. S. Holman, for appellant. Harris & Saunders, for appellees.

WALKER, J.

This suit was filed March 8, 1884, by Mrs. L. M. Turner and her husband, E. S. Turner, for damages to her undivided "one-third interest in the north half of lots 1 and 2, in block 18, and in the two-story rock house thereon, in the town of Belton," caused by defendant leasing his half of said rock house to prostitutes, etc. The defendant excepted to the petition, because it disclosed other tenants in common not joined as plaintiffs. June 5, 1886, by leave of court, Olivia C. Best joined as plaintiff, claiming one-third interest; and the alleged heirs of Mrs. Virginia Birdwell, deceased, appeared, also claiming one-third interest, — said heirs being Thomas H. Birdwell, Effie Ulrich and husband, Gus Ulrich, and Julia L. Birdwell, a minor, by her next friend, Thomas Birdwell. The plaintiffs then amended, setting out in detail the acts complained of, the leasing to prostitutes, the nuisance and damage, etc., asking judgment for damages, and that the nuisance be abated. The defendant answered, excepting to the petition; plea in abatement, because the heirs of Mrs. Virginia Birdwell, deceased, were improperly made parties pending the administration of her estate by her husband, Thomas Birdwell; general denial; and alleging specially that he had sold the premises before the acts complained of to one Lyendecker, and that since the sale he had had nothing to do with the leasing of the property, etc.

The exceptions questioned the joinder as plaintiff of Mrs. L. M. Turner in the suit for damages to her separate property. Our courts have held that such joinder, though improper, is not reversible error. Railway Co. v. Helm, 64 Tex. 149. The husband can sue alone, and it is the better practice. Rev. St. art. 1204; Railway Co. v. Medaris, 64 Tex. 93.

The defendant pleaded in abatement as to the suit by the children and heirs of Mrs. Virginia Birdwell. It was shown that she died in 1873, and that in 1874 Thomas Birdwell, her husband, qualified as her administrator in Bell county. The court overruled the plea, and the defendant excepted, and urges the action of the court upon the plea as error. It is the statutory rule (Rev. St. art. 1201) that the personal representative may sue. It is the general rule, as recognized by the courts, that, pending an administration, the heirs cannot sue,...