Cooney v. Van Deren

■WALTHALL, J. (after stating the facts as above). The transcript in this case is quite *1194 lengthy, containing in all some 556 pages, and we have stated the above as a basis for what we might say. We have concluded that this case must be reversed and remanded, and we deem it unnecessary to consider any of the 25 assignments of error. To the amended petition, the defendant Cooney undertook to reply, but his answer was contained in the eight pages struck out by the court on motion, leaving Oooney without answer to the amended petition, in which new parties and many facts additional to the facts alleged in the original petition are enlarged and brought into the case. The court, on the motion, of Morrow and the bank, by its order, substituting them as plaintiffs in the case, brings into the case additional new parties and by their pleadings adopting the amended pleadings of the former plaintiffs, t'o which no answer had be.en made and to which none was permitted to be made, and without any additional notice to or appearance or answer by Co'oney, to the new cause of action set up by the new plaintiffs, entered a judgment by default, for the amount claimed to be owed by Cooney t'o the plaintiffs in the amended iietition, in favor of the new plaintiffs and against Cooney. We make no ruling on any of the questions raised by the action of the court refusing the plaintiffs permission t'o dismiss their suit, nor any of the other questions raised, as we think those questions may not arise on another trial; but we hold that the e'ourt was in error in entering a judgment by default, on the amended petition, with new parties and new issues brought into the case by the amended pleadings, and by the substituted plaintiffs, and to which Cooney had made no answer. The amended petition put Cooney to additional answer and production of proof. Lee v. Hamilton, 12 Tex. 413; Morrison v. Walker, 22 Tex. 18; Ward v. Lathrop, 11 Tex. 287. Again, it is only by the motion of Morrow and the bank and the assignments referred to . in the motion that they are shown to be owners of the plaintiffs’ interests in the cause of action. The pleadings they filed do not allege that they own the interest in the .cause of action. Their petition is as follows: “Now come the Pecos Valley Bank, of Pecos, Texas (a corporation), and John H. Morrow, trustee, of Dallas, Texas, substitute plaintiffs in the above entitled and numbered cause, and adopt and make their own for the purpose of .this cause all pleadings heretofore filed herein by their predecessor plaintiffs.” [Signed by attorneys.] The former pleadings adopted allege the ownership of the interests alleged to be in themselves, and there is nothing in any of the pleadings by any of the parties to suggest an interest in the subject-matter of the suit to be in Morrow or the bank. Brown v. Marqueze, 30 Tex. 76, and cases there referred to. In Armstrong v. Bean, 59 Tex; 492, the original petition was filed by A. H. Bean, in trespass to try title. Thereafter,- Cora L. Bean, the real owner, claiming under conveyance from A. H. Bean, filed an amended original petition. The amended petition, except the substitution of the name of Cora L. Bean, contained the same averments found in the original petition. The defendant excepted to her petition and, among others, “that he had not been served,” and that up to the filing of the amendment “had a valid defense of a subsisting and valid outstanding title in Cora L. Bean,” and that her appearance deprived him of it. Defendant then pleaded not guilty, limitation, and valuable improvements. A. H. Bean was dismissed, and judgment was entered for her. Judge Stayton said: “Had the defendant not answered to her petition, which was filed with leave of the court, it is truc no juagment could have been rendered against him in the case, without service upon him.” Conceding that Morrow and the bank were properly substituted as plaintiffs for the plaintiffs in the amended pleadings, the only ground upon which judgment could have been rendered for them, and that by the substitution they asserted the same facts as are found in the amended pleadings with the additional fact of their ownership of the interest sued for, it could well be said that Coo-ney had never been cited to answer such suit, and the court did not have jurisdiction over the person of the defendant at the time judgment by default was entered. In Lee v. Hamilton, supra, where all parties were in fact before the court, it was held that an amendment which would necessarily put the other upon the production of proof could not be made without notice to the party to be affected by it, and that, if so made, it might be treated as a nullity. In Pendelton v. Colville, 49 Tex. 525, the Supreme Court held that an amendment setting up a new cause of action, on which judgment was entered without notice, was fundamental error. It is' not our intention in what we have said to hold that Morrow and the bank could be substituted as plaintiffs for an amount in excess of their claims. Some of the plaintiffs sue as trustees, and others as representatives of trustees. Nor are we holding that the levy of the attachment at the suit of the original plaintiffs could be foreclosed and inure to the benefit of the substitute plaintiffs. The questions are not presented here. The entry of the judgment without service of process or appearance of Cooney was fundamental error. The verbiage of the judgment .indicates that a judgment by default was announced by the court and noted on the docket before the order was made substituting Morrow and the bank as plaintiffs, and the record shows no order setting aside the former judgment; but, subsequently to such announcement and entry, Morrow and the bank filed their petition to be substituted as plaintiffs, the petition granted, and judgment entered in their favor, and for their benefit, and no part of the judgment was entered in *1195 their names for the use or benefit of the former plaintiffs. Without allegation and proof as to their ownership of the entire cause of action, we doubt the correctness of such Judgment entry. Avery v. Popper, 92 Tex. 341, 49 S. W. 219, 50 S. W. 122, 71 Am. St Rep. 849. There are a number of other errors in law apparent upon the face of this record, which would require a reversal; but we forego discussion of same, as there is no occasion for them to occur upon a retrial. The cause is reversed and remanded. Footnotes [1] <§z^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes