Miller v. Sullivan

• Citation: 35 S.W. 362
• Parties: MILLER et al. v. SULLIVAN et al.
• Decision Date: 27 April 1896
• Court: Texas Supreme Court

35 S.W. 362

MILLER et al. v. SULLIVAN et al.

Supreme Court of Texas.

April 27, 1896.

Certified question from court of civil appeals, of Third supreme judicial district.

Action by M. & J. Sullivan, as partners, against W. A. H. Miller and others. From a judgment for plaintiffs, defendants appealed to the court of civil appeals of the Third supreme judicial district, by which court a question involved was certified.

Chas. L. Lauderdale, for appellants. McLeary & Stayton, for appellees.

GAINES, C. J.

In this case the court of civil appeals have certified for our decision the following question: "This is an action by M. & J. Sullivan, partners, against W. A. H Miller, M. M. Hargis, Ben A. Ligon, J. R. Green, John C. Oatman, J. S. Scoville, M. C. Roberts, J. A. Leach, W. J. Forman, W. T. Moore, Jr., A. E. Moore, John Goodman, J. W. Davis, L. M. Deats, John Walker, J. F. McDonald, J. S. Atchison, R. H. Laning, Jas. S. Brattan, W. T. Swanson, R. F. Holden, G. W. Shaw, C. Breazeale, Wm. Mathews, Wm. P. Higdon, R. D. Lauderdale, Jas. M. Foster, O. P. Millican, Wm. Simpson, J. Duff Brown, Sr., H. C. Buttery, Miles Barler, I. N. Jackson, Mrs. E. Haynie, a widow, Mrs. T. C. Beeson, a widow, I. & B. Pessels, partners, and R. A. McInnis & Bro., partners, for $20,004, balance due on a contract made by W. A. H. Miller, for himself and as agent for his co-defendants, by which he contracted to pay appellees for grading a certain part of a railroad, the Llano Extension of the San Antonio & Aransas Pass Railway from Fredericksburg to Sandies, and for completing ten miles of the road as per contract. Plaintiffs recovered judgment in the court below, and, on appeal by defendants to this court, it was determined that the item charged for clearing and grubbing was not authorized by the power of the agent who made the contract. To correct this error, appellees propose to remit amount of the item. Mrs. Beeson was an original party defendant, and a feme sole when the suit was brought, but pending the suit she intermarried with one C. B. Cross. The fact of her marriage was made known to the court after the parties announced, but before the trial commenced. Judgment was rendered against her, with the other defendants, as feme sole, as `Mrs. Beeson' (now Mrs. Cross), without making her husband a party. This court decided that the judgment was erroneous, and that the cause should be remanded. Appellees come by motion, and in this court offer to dismiss their case against her, and ask an affirmance of the judgment against all other parties defendant. We refer the court to the contract made by Miller for defendants, as copied in the opinion of this court, filed January 15, 1896, and make it a part hereof. The judgment of the lower court, after reciting appearance, trial and verdict, proceeds: `It is accordingly ordered, adjudged, and decreed by the court that the plaintiffs, Michael Sullivan and John Sullivan, composing the firm of M. & J. Sullivan, do have and recover of and from the defendants, W. A. H. Miller,' etc.; naming all the defendants, including `Mrs. T. C. Beeson (now Mrs. T. C. Cross),' the sum of $20,004.09, with interest, etc. The question we certify to the supreme court is: Can this court legally dismiss Mrs. Beeson, and affirm the judgment against all other appellants, making the judgment valid and binding upon them?"

The determination of the question certified depends, as we think, upon the further question whether or not Mrs. Beeson was a necessary party to the suit. In Austin v. Jordan, 5 Tex. 130, it was held by this court that where a defendant need not have been joined, or where it may be desirable to dismiss one of several defendants, and the liability of the defendants is such that an action may be maintained against the others without joining him, the plaintiff may enter a nolle prosequi as to him, and have judgment against the other defendants. The rule has been recognized in numerous subsequent decisions. Dean v. Duffield, 8 Tex. 235; Tulane v. McKee, 10 Tex. 335; Horton v. Wheeler, 17 Tex. 52; Keithley v. Seydell, 60 Tex. 78; Glasscock v. Hamilton, 62 Tex. 143. If the plaintiff may dismiss as to one defendant, and proceed to trial against the others, we see no good reason why, after au appeal from a judgment against all, he may not dismiss as to one of the appellants, and have the judgment affirmed as to the others, provided such action may work no injury to the others, and the proceedings show no error as to them. The contract which was sued upon in this case, as shown by the opinion accompanying the question, is a joint promise on the part of all the defendants. Could the plaintiffs have sued one or more of them without...