— The court erred, to the prejudice of this defendant in requiring, over this defendant's objection, an announcement for trial on, towit, September 9, 1909, and in overruling defendant's motion for a continuance filed and presented on September 9, 1909. Revised Statutes of Texas, articles 5252 and 1208; Kirby v. Estill, 75 Tex. 484; Johns v. Hardin, 81 Tex. 37 [ 81 Tex. 37]; McGregor v. Tabor, 26 S.W. 443; Alvord v. Waggoner, 29 S.W. 797; Sullivan v. Creamer, 50 S.W. 431; Norton v. Collins, 20 S.W. 1113; McCreary v. Douglas, 24 S.W. 367. When a judgment rendered by a court of competent general jurisdiction against defendants sued as unknown heirs recites service of process, and recites default on the part of the defendants, or contains any other recitation equivalent to a finding on the part of the court that it has jurisdiction over the defendants for the purpose of rendering such judgment, then in any such case the judgment is not subject to be attacked collaterally by proving that proper service was not in fact had.
"When a party is sued for lands, the real owner or warrantor may make himself, or may be made, a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action." In this connection the Supreme Court held in the case of Johns v. Hardin, 81 Tex. 40 16 S.W. 624, that: "The question raised by the assignment has been decided in this state adversely to appellants in the case of Kirby v. Estill, 75 Tex. 485 [ 12 S.W. 807], and the doctrine established that the warrantor cannot only be requires to defend the title of his warrantee in a suit for the land, but after being so brought in the defendant can plead over against him and recover on the warranty in the same suit if the title fail.
The court did not err in refusing to permit appellant to read in evidence his ex parte deposition; appellant was present in court and testified, therefore, no injury could have resulted by the refusal of the court to permit the deposition to be read. Where a witness is present in court it is not error to refuse reading of his deposition in evidence: McNeese v. Republic, 2 Tex. 107; Randall v. Collins, 52 Tex. 442; Vance v. Upson, 66 Tex. 476 [ 66 Tex. 476]; McClure v. Sheek, 68 Tex. 429; Galveston, H. S. A. Ry. v. Burnett, 42 S.W. 314; Johns v. Hardin, 81 Tex. 37. A party can not read deposition of witness, if objected to by opposing side, if witness is in court at the time of trial.
The court had jurisdiction of the subject matter of the suit, and appellant, who was interested in the result, was properly made a party therein. Rev. Stats., art. 4788; Norton v. Collins, 1 Texas Civ. App. 272[ 1 Tex. Civ. App. 272]; McCreary v. Douglas, 5 Texas Civ. App. 494[ 5 Tex. Civ. App. 494]; Jones v. Hardin, 81 Tex. 37; Kirby v. Estill, 75 Tex. 484. Appellee's second amended answer did not set up a new cause of action, but it only elaborated the demand originally declared on.
Such a decree is not an adjudication of the question of title by the court, and it is obvious that such decree can not alone be evidence of a superior title, unless the warrantor has been a party to the agreement upon which the decree was entered. Peck v. Hensley, 20 Tex. 673; Brown v. Hearon, 66 Tex. 64 [ 66 Tex. 64]; Howard v. Brittan, 71 Tex. 289; Johns v. Hardin, 81 Tex. 41; Westrope v. Chambers, 51 Tex. 188; Rawle on Cov. of Titles, sec. 123. C.A. Keller, for appellees. — When a cause can not be affirmed by an appellate court, and it does not satisfactorily appear that justice to all the parties will as certainly be done by reversing and rendering as by remanding, the judgment should be reversed and the cause remanded.
We believe it has never been contended that a defendant has not the right to vouch in his warrantor so as to make the judgment binding upon him, no matter where he may reside; and we see no good reason why, under our liberal system of procedure, the same rule should not apply to a plaintiff, where the land conveyed to him is claimed adversely. Norton v. Collins, 1 Texas Civ. App. 272[ 1 Tex. Civ. App. 272]; Johns v. Hardin, 81 Tex. 37 [ 81 Tex. 37]. How else could the judgment rendered be made evidence against the warrantor? It certainly is not the law, that a plaintiff can be required first to litigate with an adverse claimant, and when he suffers defeat, the judgment rendered against him be no evidence in his favor in a subsequent suit upon his covenant of warranty.
Mantooth Townsend, for appellant. — 1. Plaintiff's petition sets up a cause of action against Alfred Chesnut as warrantor, which had accrued before the filing of the petition. Sayles' Civ. Stats., art. 4788; Clark v. Mumford, 62 Tex. 531; Kirby v. Estill, 75 Tex. 484; Buchanan v. Kauffman Runge, 65 Tex. 235; 62 Tex. 553; Johns v. Hardin, 81 Tex. 37. 2.
It was error for the trial court to sustain plaintiff's plea in abatement to plaintiff's cross action against Bush (the landowner from whom both parties had leased the sand and gravel rights) seeking to make him a party to the suit. Maxwell v. Urban, 55 S.W. 1124; Skipwith v. Hurt, 94 Tex. 322, 60 S.W. 423; John v. Hardin, 81 Tex. 37, 40, 16 S.W. 624. Richey, Sheehy Teeling, and Conway Scharff, all of Waco, for defendants in error.
Baldwin v. Goldfrank, 88 Tex. 249. In a suit of trespass to try title, a defendant or intervenor who is really a defendant, has the right to vouch his warrantor into the suit, and it is erroneous on the part of the court to deprive him of that right. Rev. Stats., art. 5252; Meade v. Jones, 13 Texas Civ. App. 320[ 13 Tex. Civ. App. 320]; McCreary v. Douglas, 24 S.W. 367; 5 Texas Civ. App. 494[ 5 Tex. Civ. App. 494]; Johns v. Harden, 81 Tex. 37. A severance is only available to one of several defendants who are impleaded by the plaintiff and against whom the plaintiff is seeking some relief.
llee against the appellant for and on account of the sickness of appellee and his wife and the consequences thereof, if the negligence of the appellant in failing to furnish a comfortable car, concurring with the like negligence of its connecting carriers or either of them in also failing to furnish a comfortable car, caused the sickness of plaintiff and his wife, is erroneous in not limiting the liability of the appellant for the negligence of the connecting carriers to such negligence of such carriers as was induced or set in motion by the negligence of appellant, and it is upon the weight of the evidence in that it assumes that the prior negligence of appellant brought about or induced the subsequent negligence of the connecting carriers, and the negligence of the succeeding and connecting carriers would not have occurred but for appellant's negligence. Galveston H. S.A. Ry Co. v. Naas, 94 Tex. 255; Gulf C. S.F. Ry. Co. v. McWhirter, 77 Tex. 356; Gonzales v. Galveston, 84 Tex. 7; O'Connor v. Andrews, 81 Tex. 37, 47 Law. Rep. Ann., 480. The Court of Civil Appeals erred in its opinion and judgment in holding that the plaintiff in error under the contract was liable for the injuries sustained by the defendant in error and his wife upon the lines of the connecting carriers.