Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 808
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808 INDEX.
PARTIES - continued.
or more without suing all, has never been recognized in practice in Texas.
Id.
8. One action may be brought by an assignee of a failing debtor against
the sheriff, for wrongfully levying three writs of attachment for different
parties claiming in distinct rights, which were levied on different portions
of the assigned property. The right of action accruing for the three seizures
under attachment to the same person and against the same individual,
the right may be ascertained and determined in one action. Thomas v.
Chapman, 193.
9. A sheriff levied three writs of attachment on goods for as many
different creditors, who acted each without any concert of action or agreement
with the others. Each executed to the sheriff an indemnifying bond.
The assignee having the goods in possession when seized under the three
writs, sued the sheriff and his sureties. The sheriff caused the creditors
who executed the indemnifying bonds to be made parties defendant to the
suit, and prayed a recovery over against them for any damages that might
be recovered against him and his sureties. Held, that the sheriff had as
many distinct causes of action as there were indemnifying bonds, and they
could not properly be made parties in the one action in the manner desired.
Id.
10. In a suit to enforce a lien on land to secure the payment of a note,
C. was sued as principal, B. as surety, and H. as indorser. Judgment
by default was taken against B. and H., and a decree entered, first subjecting
the land to its payment. C. answered, and his attorney obtained
leave to make C.'s wife a party, and filed a separate defense for her,
claiming that land as separate property, and that it was a homestead. Her
answer was stricken out. Afterwards C. and wife brought suit against the
plaintiff, who recovered judgment in the former proceeding, to enjoin and
vacate the decree which ordered a sale of the land, not making B. and H.
parties thereto, and obtained judgment vacating so much of the former
judgment as ordered a sale of the land. In a proceeding by B. and H. to
enjoin the plaintiff in the first action from enforcing execution against them
as original surety and indorser, held:
(1) B. and H. were not affected by the judgment in the second suit, to
which they were not made parties.
(2) If, in the second suit, the original plaintiff and C. and wife consented to
the entering of a decree whereby the first judgment was vacated, so far as
it foreclosed the lien on the land, and B. and H., not being parties, did not
consent thereto, then they were relieved from liability under the first judgment,
to the extent of the value of the land.
(3) If, as a fact, C.'s wife was a party defendant in the first suit, she was
concluded by the decree therein to the extent of all matters that might have
been litigated in that suit. Henderson v. Terry, 281.
11. Where the husband has abandoned his wife, and is a fugitive from
justice, the wife can either institute a suit or defend one for the protection
of herself or property without the joinder of her husband. Ryan v. Ryan,
61 Tex., 474, cited and approved. Black v. Black, 296.
12. A judgment foreclosing a vendor's lien, to which neither husband nor
wife is a party, is inadmissible in a subsequent suit between the latter and a
party claiming the property under such judgment. Id.
13. A judgment is a bar to a subsequent action only as to those who were
parties to that judgment. Id.
14. In a suit on a vendor's lien note by an assignee of the note, not only
must the payee who has expressly transferred the lien be made a party, but
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/830/: accessed March 28, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .