Ox Motion fob Bbhearixg.
Gould, Chief Justice.In overruling the application for rehearing in this case and in Ho. 4571, it is only desired to add to what is said in the original opinion, a brief statement embracing an additional reason for refusing to reverse the judgment because of the alleged error, in proceeding to decree a partition of the lands sued for, when the record showed that necessary parties, viz., the heirs of Emeline Grigsby, were not before the court.
The brief of counsel for appellee, in a statement made under the assignment of error , covering this point, treated Robert F. Aspley as the heir erf Emeline Grigsby, and that statement not being contested, *268or at least nothing appearing in the brief of counsel of appellant indicating such contest, was treated by this court as having been acquiesced in, and as correct. From the statement made in the application for rehearing, it now appears that the record does not show that Robert F. Aspley is the heir of Emeline Grigsby. But, if it be conceded that this fact could avail appellant as fully as if the statement of counsel for appellee had been contested at the right time, and if it be further conceded that in the face of the statements in the petition admitting part ownership in Aspley, it could not be presumed that the interest of Emeline Grigsby was vested in appellant Caruth, still, although this would show that the court erred in proceeding to partition the land-, we are of opinion that the appellant, having failed to object to these proceeding in the court below, cannot make the objection for the first time in this court. The rule is that an objection for the want of parties comes too late when taken for the first time in the appellate court. Shelby v. Burtis, 18 Tex., 648; Hughes v. Roper, 42 Tex., 116.
Ho where in the record, not even in the motion for new trial, dbes it appear that appellant- Caruth objected to the partition on,the ground that there were other part owners not before the court. Had the objection been made and overruled, he would have had good cause to claim that so much of the decree as ordered partition should be reversed. That part of the judgment settling the question of title, however, would not have been affected by the error, and would have remained undisturbed. But as the objection to the want of proper parties was not made below, it cannot now avail appellant, even for the purpose of reversing that part of the judgment and decree awarding partition. ,
It is proper to notice that the title of the case as it appears on the docket does not indicate who is the true party appellant. As tried below, D. B. Grigsby and Maria Louisa Swindle were plaintiffs, and Win. .Caruth was defendant. Grigsby recovered nothing, and Maria Louisa Swindle recovered one-sixth of the premises. Caruth appealed from the judgment in her favor giving land to her. Caruth as appellant, and Maria Louisa Swindle as appellee, are the only parties to this appeal. The motion for rehearing is overruled.
Motion ovebbuled.
[Opinion delivered June 26, 1882.]