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: 165
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1875.] STEPHENSON v. T. & P. R. R. Co. 165
Opinion of the court.
731; 33 Tex., 198; 5 Tex., 566; 35 Tex., 657; 38 Tex.,
513; 29 Tex., 88.)
But although great freedom and liberality has always
been allowed in our practice in bringing cases into this
court for review, it is mainly in respect to the form and
manner of getting the judgment and parties before the
court that there is any material difference in our practice
and that under the common law. Hence, while improper
and unnecessary parties may not absolutely require the
dismissal of the case, if such as are necessary are properly
before the court, and the judgment is properly described in
the petition and citation in error, and a valid and sufficient
bond has been executed to the proper parties, it is, nevertheless,
as essential with us as at common law to the validity
of the writ that it is brought by and against the parties
to the record or their privies. If, therefore, the plaintiff in
the court below has not been made a party to the writ, and
the defendant in error, as is insisted, is in fact a stranger
to the record, the motion to dismiss the writ should be
But is the objection maintained by the record, and the
evidence explanatory of it, presented in support of our
jurisdiction, on the hearing of the motion to dismiss ? The
suit was brought and the judgment was recovered in the
District Court by the Southern Pacific Railroad Company,
a body corporate under a charter from the State of Texas.
While it appears from the petition for the writ of error,
stripping it of all impertinent and unnecessary averments,
"The Texas and Pacific Railway Company" is made the
defendant in error, unquestionably, then, if "The Texas
and Pacific Railway Company" is, not, in a legal sense,
and for the purposes of this writ, at least, the same corporation,
though now called by a different name, in whose
behalf the judgment was rendered, or it is not in contemplation
of law in such privity with it as to stand in place
of and be dealt with as its lawful successor and represent
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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/m1/173/: accessed July 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .