H. M. Cohen Lumber & Building Co. v. McCalla

PER CURIAM. Relator herein sues- the Judge of 'the 127th District Court of Harris County, Hon. Kenneth McCalla, alone, in an original application to this court for a writ of mandamus to compel him to so change the records in his court in cause No. 243,976, wherein Steve Panos is plaintiff, H. M. Cohen Lumber & Building Company, relator herein, is a defendant, H. Charney is a defendant, N. D. Dobbins is a defendant, Maryland Casualty Company is a defendant, and Maryland Casualty Company is a cross-plaintiff, as to reflect that relator’s original motion for a new trial in such cause below was actually filed there on June 6 of 1940, instead of on June 1 of 1940, and to consider relator’s amended motion for a new trial in that cause, which was filed on June 22 of 1940, as a duly and regularly filed instrument in that proceeding. It is obvious that, the other parties in such cause No. 243,976 are vitally interested in the controversy to which such application for mandamus relates, and that each of them is a necessary party to such a proceeding; wherefore, since no one of such parties is before this court, it becomes plain that the application is fatally defective for the want of them all as the necessary parties thereto. The petition will accordingly be dismissed, without prejudice to the right of relator to again present the same to this court with all necessary parties included. Williams v. Wray, 123 Tex. 466, 72 S.W.2d 577; Goebel v. Carter, 124 Tex. 314, 77 S.W.2d 215; Kelly v. Lobit, Tex.Civ.App., 134 S.W.2d 428. Respondent’s motion to dismiss for want of necessary parties granted and petition dismissed.