I concur in the judgment of the court, but I respectfully dissent from some of the views expressed in the opinion. I am not prepared to assent to the proposition, that the judgment previously rendered for the appellants against the husband of the appellee Josephine Lewis was void both as to her and her husband. In my opinion the judgment against the husband was conclusive as to him; and while it was inoperative as to the wife, she not having been made a party to the suit, so long as the premises were occupied as their homestead, yet had the premises been abandoned before the judgment in this suit was rendered, the judgment in the former suit against the husband alone would have given title to the appellants to the premises, exempt from all right or claim of homestead by the wife. The case of Campbell v. Elliott, 52 Texas, cited in the opinion, simply decides that a judgment foreclosing a mortgage given by the husband alone upon the homestead of himself and wife was void, and binding upon neither the husband nor the wife. That case, therefore, does not sustain the proposition, that a judgment against the husband in suit of trespass to try title is void, unless the wife be made a party to the suit, when the land sued for is occupied as a homestead. In this case the appellants did not plead abandonment in avoidance of the wife's claim of homestead, and therefore the refusal of the judge to give the instruction requested by appellants upon the subject of abandonment was not error. *Page 120
Upon the motion of the appellants in this cause, the point of dissent of Hon. H. Clay Pleasants, Associate Justice, is certified to be as follows:
On November 23, 1887, the greater portion of the land in controversy was the homestead of the appellees and community property. At that date, in a suit against Joe Lewis (the husband) alone, the appellants recovered a judgment for the land in controversy. A writ of possession was issued, but the wife, Josephine Lewis, refused to surrender possession, and this suit was brought against both of them. Plaintiffs set up the former judgment against the husband, Joe Lewis, alone for the land; to which the defendants replied, that at the time of the institution of the former suit, and for a long time prior thereto, and then, the land sued for was the homestead of the defendants; that Mrs. Lewis was not a party to the said suit, and that the judgment rendered therein was not binding upon her for any purpose.
On the trial evidence was admitted tending to show an abandonment of the homestead by the defendants since the rendition of the judgment in the first suit, and since the institution of the present suit; and the plaintiffs requested a charge to the effect, that if the jury should believe from the evidence that the defendants had abandoned the land in controversy as a homestead since the rendition of the judgment against the husband in the first suit, they would find for the plaintiffs.
The majority of the court held, that the defendant Josephine Lewis was not bound by the judgment rendered November 23, 1887, in the first suit against her husband, Joe Lewis, for such of the land as was their homestead when that suit was instituted; that said judgment was inoperative and of no effect as to either Lewis or his wife, and could have no prospective effect or be put in operation by a subsequent abandonment of the land as a homestead. A doubt was expressed also whether the charge requested should have been given, even if it contained a correct proposition of law, because the plaintiffs did not plead a subsequent abandonment in reply to the defense that the land was the homestead of the defendants.
Judge PLEASANTS dissents from the conclusion, that the judgment in the cause of Mexia v. Joe Lewis was inoperative, and holds, that it would be conclusive against both defendants upon a subsequent abandonment of the land as a homestead; but he concurs in the disposition of the case, because there was no pleading under which the issue could have been submitted to the jury.
This cause was tried below before the Hon. F.A. WILLIAMS, Associate Justice, when he was on the district bench, but it was and is the unanimous opinion of the court that he is not, for that reason, disqualified to sit in this cause. *Page 121
It is ordered, that the clerk of this court certify to the honorable Supreme Court, now in session at Austin, a copy of this order, and of the opinion and dissenting opinion, as well as of the judgment of the court below.
In the Supreme Court, April 27, 1892. — The question of dissent held not material to a decision of the case, and it was dismissed for want of jurisdiction.