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: 148
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148 BIRMINGHAM v. GRIFFIN. [Tyler Term,
Opinion of the court.
O'Neal & Vaughan, for appellees.
MOORE, ASSOCIATE JUSTICE. - T ardy Birmingham, in
whose name this suit was originally brought, had no interest
whatever in the matters in controversy in it. Iis petition
shows that he was not asking the interposition of the
court for his own benefit, but for the use of other parties,
who, if interested in the matters alleged in the petition,
should have brought the suit il their own names. (30
Tex., 158.) But although the suit was improperly brought
in the first instance, the irregularity and improper manner
in which it was commenced might, under our liberal
system of pleading, have been cured b-y an andmdment by
the real party in interest making himself a party to it, and
a discontinuance as to the original and nominal party by
whom it purports to have been brought, at the costs,
however, of the plaintiff to the making of the amendment,
if claimed by the defendant.
This seems to have been attempted by the supplemental
petition filed by the parties for whose use the suit purports
in the original petition to have been brought. But the
supplemental petition is also subject to substantially the
same objection. It is a joint action. The prayer is for a
joint judgment, yet the petition on its face shows that only
one of the petitioners is interested in the matter in coitroversy,
and that the other is an improper party to the
suit. The court did not err, therefore, in sustaining the
exceptions to the supplemental as well as the original petition.
The court should, and no doubt did, indicate the grounds
on which the exceptions were sustained. And if the plaintiff
had then amended the petition by dismissing as to the
party improperly joined, and asking that the suit might
proceed in the name of the one really interested in it,
the court, we must presume, would have permitted this to
be done; for, although it is assigned as error that the
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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/m1/156/: accessed September 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .