Walker v. Read

• Decision Date: 27 March 1883
• Docket Number: Case No. 1546.
• Citation: 59 Tex. 187
• Parties: LEWIS D. WALKER ET AL. v. R. N. READ ET AL.
• Court: Texas Supreme Court

59 Tex. 187

LEWIS D. WALKER ET AL.

v.R. N. READ ET AL.

Case No. 1546.

Supreme Court of Texas.

Mar. 27, 1883.

APPEAL from Houston. Tried below before the Hon. J. R. Kennard.

Appellants sued R. N. Read and others for damages for trespasses and waste, alleged to have been committed by them upon a league of land granted originally to J. A. Aughinbaugh, claimed by appellants, alleging their damages at $1,400. The defendants answered, demurring generally and specially to the petition. The court sustained the exceptions to the petition, and, plaintiffs declining to amend, dismissed the suit.

The petition alleged that plaintiffs were the owners of the league of land as tenants in common--Walker and wife and Nunn of one half, and Allen of the other, undivided; that in 1878, in a suit brought and then pending in court, wherein Walker and wife were the plaintiffs, suing the defendants in this suit as trespassers for the title and undivided half and possession of the whole league, Walker and wife (under whom Nunn acquired his interest) filed an amended petition, whereby they also claimed as co-tenants of plaintiff Allen, and sought recovery in her behalf as well as for themselves, and that in November, 1878, the plaintiffs in that suit recovered judgment against the defendants herein for the land so claimed and for the possession of the entire league; that the defendants herein were sued as joint trespassers and defended jointly, and judgment was recovered against them jointly for the entire league and for the immediate possession thereof, and writ of restitution ordered, etc.; that the defendants, instead of surrendering the land in accordance with that judgment, confederated together and filed with the clerk of the court their appeal bond with two securities, whereby they perfected their appeal and prevented the issuance of a writ of restitution; and by this means the defendants, who had been previously thereto in the possession of the land, but whose possession was so adjudged wrongful and illegal, were enabled to retain possession, and thereafter withheld the same from plaintiffs until April, 1880, when, the judgment having been in March affirmed, they were ejected under writ issued thereon; that by means of the premises, the defendants became and continued to be joint trespassers upon the land, and became jointly liable to plaintiffs for rents and profits. The petition proceeded to allege that defendants had, during the time they held possession, converted to their own use the rents and profits thereof, and had cut and destroyed the timber and converted same to their own use. The petition claimed a joint judgment for the damages alleged, because of the judgment establishing tenancy--in common-- between them, and entitling them to the possession of the land as such against the defendants, and also because of their ownership of the land independent of the judgment. It also claimed judgment for each of the plaintiffs for his or her proportional share of the whole damages, in case either of them should fail, each alleging title in himself or herself to the portion claimed.

No judgment was sought upon the appeal bond; it was set out as showing a joint holding by defendants. The court by its judgment sustained the two exceptions set forth in the opinion, holding the allegations were not sufficient to show joint liability on the part of defendants.

Nunn, Williams & Corry, for appellants, cited O'Shea v. Twohig, 9 Tex., 342;Murray v. Longjoy, 3 Wall., 1; Chirac v. Reinecker, 11 Wheat., 842; Cooley on Torts, pp. 133 and authorities cited, 135, 136; Stone v. Dickinson, 5 Allen, 29;Lewis v. Jones, 34 Cal., 634; Tyler on Eject., p. 841.

J. R. Burnett, for appellee, contended that, to sustain an action of trespass against several defendants, the act or acts complained of must be the joint act or acts of all of them, either in fact or in legal effect; and that in this case no co-operation or common interest on the part of the defendants being alleged, the exceptions were properly sustained as to any joint liability of the defendants. Citing Longcope v. Bruce, 44 Tex., 437, 438; 1 Chitty on Pleadings, 16th Am. ed., top page 90, note m; Bliss on Code Pleading, sec. 83; Cooley on Torts, p. 136; Bard v. Yohn, 26 Pa. St., 482.

STAYTON, ASSOCIATE JUSTICE.

The court below having sustained demurrers to the plaintiffs' petition, it only becomes necessary to consider its sufficiency.

The demurrers were as follows:

“1st. The petition does not show that defendants jointly held possession of the land described or jointly committed waste or trespass on said land, or held or claimed any community of interest in the same, and the petition shows a misjoinder of parties defendant, there being no sufficient facts showing any joint liability.”

“3d. It shows that this suit is an attempt to hold defendants liable as joint trespassers, etc., by reason of their joining in an appeal bond in said suit and exercising their constitutional right of appeal, and without alleging any breaches of said bond, or alleging that defendants jointly possessed or jointly committed joint trespass on the land or held any community of interest therein.”

The petition states the recovery of the land by the guardian of Mrs. Walker, under and through whom the plaintiff Nunn claims, and the tenancy in common of Mrs. Allen, the other plaintiff; and although Mrs. Allen was not a party to the former suit, yet the judgment in favor of her co-tenant for all of the land inures to her benefit, in so far as her right to the possession of the land is concerned, unless the defendants in this suit, who were also defendants in the former suit, have some title to the land to assert as against her.

The former judgment, having been rendered in a cause in which Mrs. Allen was not a party, can have no effect as between her and the defendants in that suit, except in so far as the assertion of title in that suit by her co-tenant may have...