Garner v. Jamison

TALBOT, J. This action was filed on the 19th day of April, 1906, by J. D. Jamison and G. M. Garner, plaintiffs, against Campbell Russell, C. S. Barrett, W. S. Miller, O. P. Pyle, and A. H. Belo & Co., a corporation, defendants, each plaintiff praying for $10,000 actual damages and $10,000 exemplary damages against each of the defendants for an alleged libel. The defendant A. H. Belo & Co., on the 29th day of November, 1907, and the other defendants, on the 24th day of November, 1908, filed amended answers, in which, among other things, they and each of them excepted specially to the petition of the plaintiffs upon the ground that there was a misjoinder of parties plaintiff. The plaintiffs excepted to and resisted the pleas of misjoinder of parties plaintiff upon the ground that all of the defendants had waived a misjoinder, if any, by pleading to the merits of the cause and permitting several terms of the court to pass after so doing, without excepting to the misjoinder and by waiting to present the exceptions or pleas of mis-joinder until such a period of time had elapsed as to cause the action to be barred by limitation, if it should be dismissed. The court sustained the exceptions setting up a misjoinder, and the plaintiffs then, because of the action of the court, requested a severance of the cause, and that each of the plaintiffs should be permitted to docket his cause as a separate action, which application was denied by the court. The attorney for the plaintiffs then announced that, acting under the rule of the court, and because the court would not permit the cause to go to trial and would not permit a severance, he would take a nonsuit on behalf of plaintiff, Garner, and did so, and then and there gave notice of appeal from the action and ruling of the court to the Court of Civil Appeals on behalf of said plaintiff. Afterwards a motion was made on behalf of the plaintiff, Gamer, to reinstate his cause of action as a separate suit upon the docket of the court, which prayer was denied by the court. Plaintiff, Garner, gave notice of appeal to the Court of Civil Appeals from the action of the trial court, and brings the case to this court by writ of error. The several rulings of the court mentioned are assigned as error, but it is only necessary for the purposes of this appeal for us to determine whether or not the trial court erred in sustaining the special exceptions of the appellees to the petition of piaintiffs asserting a misjoinder of parties plaintiff. The decision of the question does not turn upon whether or not there was in fact such misjoinder, but whether, if there was such misjoinder, it had been waived. The proper practice in this state is to raise the question of misjoinder of parties and causes of action when the misjoinder appears from the face of the pleadings, by demurrer, and the objection must be taken and determined in limine. Our statute gives the defendant the right or privilege to plead, in his answer, “as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause,” provided he files them all at the same time and in due order of pleading. Article 1902, Revised Stats. 1911. The proviso in this statute was not complied with in this case. The exceptions of the defendants to the petition of the plaintiffs were filed long after their general denial, and was not therefore in the due order of pleading. As has been stated, this suit was filed on the 19th day of April, 1906, and the answers of the defendants A. H. Belo & Co., Campbell Russell, and O. P. Pyle, and O. S. Barrett and W. S. Miller, consisting of a general demurrer and general denial, were filed, respectively, on the 28th day of April, 1906, June 6, 1906, and September 26, 1906. Thereafter, on the 29th day of November, 1907, A. H. Belo & Co., and on the 24th day of November, 1908, the other defendants, filed amended answers, in which for the first time they excepted to the petition of plaintiffs upon the ground of misjoinder 942 of plaintiffs. Haying answered to the merits of plaintiffs’ case before filing their exceptions setting up a misjoinder of parties plaintiff, defendants waived the misjoinder, if any, and the court erred in sustaining said exceptions. Hays v. Perkins, 22 Tex. Civ. App. 198, 54 S. W. 1071; Moore v. Waco Building Ass’n, 19 Tex. Civ. App. 68, 45 S. W. 974; Wallace v. First Nat. Bank, 95 Tex. 103, 65 S. W. 180; Connor v. Hawkins, 64 Tex. 544; Howard v. Britton, 71 Tex. 286, 9 S. W. 73; Railway Co. v. Railway Co., 83 Tex. 509, 18 S. W. 956. The judgment of the court below is reversed, and cause remanded.