Hackworth v. English , 53 Tex. 488 ( 1880 )

Bonner, Associate Justice.

Although not necessary that an appeal bond should be signed by the defendants to the judgment, yet from the fact that the bond in this case is signed by the defendant Hackworth, and not by the others, and as it in terms purports to be conditioned that the “ defendant ” shall prosecute the appeal, and perform the sentence, judgment or decree of this court, in case the decision shall be against the “appellant,” it might very reasonably be construed to be an appeal bond for defendant Hackworth only.

If this were so, then the question whether the other defendants had been properly cited, would not be before us.

The counsel for both parties, however, treat the case as an appeal by all the defendants to the judgment below, and we will thus consider it.

The judgment recites that all the defendants were duly cited. There is no question but that Hackworth was before the court, as he accepted service. The supplemental petition of plaintiffs by which the other defendants were sought to be made parties, prayed that they be served with a copy of both the original and supplemental petitions. This supplemental petition was exhibited, not against Hackworth, but the other defendants. The citations issued in pursuance thereof, described the copies of the petition which the sheriff was commanded to serve, as against Hackworth and the other defendants, naming them, and the return of the sheriff shows that they were served with the accompanying certified copies of petition. There was no motion to quash service or other objection taken to it, because a copy of both the original and supplemental petitions was not served. We think that the record presents such case as that, in support of the judgment, it will be presumed that the defendants were properly cited.

We do not think the objection well taken, that the court could not dismiss as to some of the defendants not cited.

It is evident from the allegations in the pleadings (and counsel for both parties so consider it), that the notes sued on were community property of plaintiffs, Joshua English and his wife, Charlotte English. Being community property she had a direct interest in them.

If the fact that if a suit for community property should be brought in the names of both husband and wife, would in any event be material error, we are of opinion that under the circumstances of this case, when no injury is shown to have resulted thereby, and when the question is for the first time raised in this court, it would not be sufficient for reversal.

Although under the statute the husband has the right to the sole management of the community property, yet if he himself chooses to permit a suit therefor to be brought in the joint names of himself and wife, those whose rights are not affected thereby should not complain. The judgment in such suit would be binding on the husband, and would not come within the doctrine of Owen v. Tankersley, 13 Tex., 405; Hatchett v. Conner, 30 Tex., 104; Holloway v. Holloway, 30 Tex., 174.

The description of the tract of three-fourths of a league of land is sufficient to identify it.

The description of that part of it containing fifteen hundred acres, upon which the vendor’s lien was enforced, was dependent upon a selection to be made by Mrs. English, by which it also would be rendered certain. Until this selection was made, English and wife owned an undivided interest in the land susceptible of. sale, and subject to the vendor’s lien.

It would seem that Hackworth, by virtue of his purchase from them, acquired himself this right of selection'. But whether he did or not, he could legally have compelled a selection, and thus have had the description of the fifteen hundred acres purchased by him made certain.

As he neither made this selection himself nor caused the same to be made, he should not be heard to object that the description in his deed and under which he obtained and held possession, is too uncertain. Judgment affirmed.

Affirmed.

[Opinion delivered June 22, 1880.]