Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 147
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1875.] BIRMINGHAM v. GRIFFIN. 147
Argument for the appellant.
H. BIRMINGHAM ET AL V. W. E. GRIFFIN ET AL.
1. MISJOINDER OF PARTIES.-A brought suit to establish a boundary
line for use of B and C. By supplemental petition B and C became
parties, showing that at the institution of the suit C only was interested
in the land in controversy: Held, that demurrer for misjoinder
of parties was properly sustained.
2. In such case, it not appearing that plaintiffs asked leave to amend in
the court below, it was not error to dismiss the.suit for such defect
in the petition.
APPEAL from Cass. Tried below before the Hon. James
On 21st March, 1871, Hardy Birmingham brought suit
in his own name for the use of his sons, G. C. and W. P.
Birmingham, to establish a boundary line between the
lands of plaintiffs and W. E. Griffin et al., and for rents.
The defendants, at return term, demurred, and pleaded
March 7, 1872, G. C. and W. P. Birmingham filed supplemental
petition, showing that in 1866 their father,
Hardy Birmingham, had conveyed the lands to them, part
to one and part to the other; showing that only Wm. P.
Birmingham was interested in the lands in controversy
from the uncertainty of the division line.
Defendant to the supplemental petition excepted on
account of misjoinder of parties plaintiff, and pleaded to
The court sustained the exceptions, and dismissed the
petition. Motion for new trial was urged, but by the
court overruled so far as the suit affected the title to the
Plaintiff excepted and appealed.
W. L. Crawford, for appellant, cited Hurd v. Lockett,
20 Tex., 162; Hollis v. Bordea, 10 Tex., 364; 26 Tex.,
558; 19 Tex., 142; Johnson v. Davis, 7 Tex., 173; Emmons
v. Ogden, 7 Tex., 175.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/155/: accessed April 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .