Roberts, J.
A rehearing having been granted, the case has again been considered.
If the plea of res judicata is a bar to this second action, it is unnecessary to look further, to determine whether or not the Court erred in overruling the motion for a continuance.
The former suit, the judgment in which is set up in bar of this, is of a mixed character; to establish plaintiffs’ title as against a number of persons claiming title to the same land under adverse titles, and to quiet plaintiffs in the enjoyment of the same, free from litigation and harassment in relation to it. It is in the nature of a bill of peace, “which is brought by a person to establish and perpetuate a right which he claims, and which, from its nature, may be controverted by different persons, at different times, and by different actions.” (2 Story, Eq. Jur. Sec. 853.) “Courts of Equity, having a power to bring all the parties before them, will at once proceed to the ascertainment of the right; and, if it be necessary, they will ascertain it by an action or issue at law, and then make a decree finally binding all the parties.” (Id. Sec. 854.) The petition alleged right in the plaintiffs, and trespasses by defendants. It has been held by this Court, at an early day, that in an action of trespass to try title to land, several defendants might be joined in the same action by a plaintiff whose right was the same as against all the defendants.
The point of difference between this and an ordinary suit of trespass to try title was, that in this, plaintiffs sought to set aside the patents and conveyances of defendants, as having been made [552]*552and procured in fraud of their rights. This alleged fraud did not relate to any transactions between plaintiffs and defendants which rendered them fraudulent. Defendants’ title had no connection with that of plaintiffs’, except that of locality. Each party claimed under different titles emanating from the Government. If plaintiffs’ title was good, and they obtained a judgment upon it against the defendants, that settled plaintiffs’ right; for the time, at any rate. Whether this would entitle plaintiffs to enjoin defendants from hereafter suing on their title, would depend upon facts additional and cumulative to those necessary to the maintenance of plaintiffs’ mere superior right to the land.
The superaddition of these facts, by which the plaintiffs sought this additional remedy, does not the less render it a suit to try the title; for the title of plaintiffs must be established as a prerequisite to the additional relief. If it be established, the plaintiffs would be entitled to a judgment to that effect, whether the additional facts alleged and proved entitled them to this additional relief or not.
The omission to indorse on the petition that the action was brought to try the title, as directed in the statute, cannot control the nature of the suit, when it necessarily involved the trial of the plaintiffs’ title; and if its character and object could have been mistaken, by which the defendants were about to be misled in their defences, they should have excepted to the petition, on that ground. (Shannon v. Taylor, 16 Tex. R.423.) The defences, putting in issue the title, show that the defendants were not misled in this regard.
We are of opinion, therefore, that the plea of res judicata was not a good defence to this action.
It will be seen by reference to the judgment, that although the Court seemed to have acted on this plea alone, the judgment goes further than its adjudication would authorize, by decreeing “that the defendants be quieted in their title to, and possession of, the land covered by the locations, surveys and patents of the said Paschal, which are situated within the boundaries set forth in the plaintiffs’ petition.” This part has reference to the pleas, of defendants setting up title in themselves, the evidence in support of which was excluded as unnecessary to determine the case. This Court could reverse that part of the decree, as not being supported by the evidence, and still leave standing that portion of the judgment which is appropriate to the. issue which was tried, to wit: that the “plaintiffs take nothing by their suit,” [553]*553&c. This the Court would do, if it were determined that the plea, which formed that issue, was a bar to the action. But having determined that it is not, does it follow that the judgment that the “ plaintiffs take nothing by their suit” must be reversed ? The plaintiffs offered no evidence in support of their title, and the defendants (or some of them) had pleaded not guilty, which put upon the plaintiffs the burthen of proof; and if the defendants had adduced no proof upon their plea of res judicata, or if their proof had been insufficient to maintain that plea, this same judgment, that “plaintiffs take nothing by their suit,” must have been rendered, because the plaintiffs were bound to recover on the strength of their own title, and had offered no evidence in support of it.
This brings us to the consideration of whether or not the Court erred in disregarding or overruling the plaintiffs’ motion for a continuance.
It is more than probable, from what appears of record, that the Court disregarded this motion for a continuance, and did not pass upon its intrinsic merits, because of the view taken of the immateriality of any evidence of witnesses, under the plea of res judicata. The motion stands, therefore, without the weight of the presumption against it, which a direct decision upon it, irrespective of the plea, would have imposed.
The petition was filed October 25th, 1854, and it does not appear when, if at all, process was served on defendants. The defendants (except Lee and Sutherland) filed their answer at the Spring Term of the Bexar Court, 3d March, 1855. Plaintiffs were ruled to give security for costs at the same Term. In this condition, and before two of the defendants had answered, the venue was changed to Hays county (the Judge being disqualified) at the instance of defendants, and the order for the change was made 19th of March, 1855. Plaintiffs not having given the bond for costs, and the time not having expired, in which the law allowed them to give it, the defendants gave the bond on the 7th day of April, 1855. The transcript was made out for a change of venue by the Clerk on 14th April, 1855. The papers were filed in Clerk’s office of the District Court of Hays county on the first day of the Court, (as stated in appellees’ brief,) which was the 17th or 18th of April, 1855. On the 17th day of April, 1855, Lee and Sutherland appeared and filed their answer, pleading, among other things, “Not guilty.” And on the 18th day of April, 1855, plaintiffs, by their attorney, applied to the Court [554]*554for a continuance, which was refused, and the overruling the application was entered of record on the minutes. The application, being sworn to, reads as follows :—
“ Comes the plaintiff by J.
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Roberts, J.
A rehearing having been granted, the case has again been considered.
If the plea of res judicata is a bar to this second action, it is unnecessary to look further, to determine whether or not the Court erred in overruling the motion for a continuance.
The former suit, the judgment in which is set up in bar of this, is of a mixed character; to establish plaintiffs’ title as against a number of persons claiming title to the same land under adverse titles, and to quiet plaintiffs in the enjoyment of the same, free from litigation and harassment in relation to it. It is in the nature of a bill of peace, “which is brought by a person to establish and perpetuate a right which he claims, and which, from its nature, may be controverted by different persons, at different times, and by different actions.” (2 Story, Eq. Jur. Sec. 853.) “Courts of Equity, having a power to bring all the parties before them, will at once proceed to the ascertainment of the right; and, if it be necessary, they will ascertain it by an action or issue at law, and then make a decree finally binding all the parties.” (Id. Sec. 854.) The petition alleged right in the plaintiffs, and trespasses by defendants. It has been held by this Court, at an early day, that in an action of trespass to try title to land, several defendants might be joined in the same action by a plaintiff whose right was the same as against all the defendants.
The point of difference between this and an ordinary suit of trespass to try title was, that in this, plaintiffs sought to set aside the patents and conveyances of defendants, as having been made [552]*552and procured in fraud of their rights. This alleged fraud did not relate to any transactions between plaintiffs and defendants which rendered them fraudulent. Defendants’ title had no connection with that of plaintiffs’, except that of locality. Each party claimed under different titles emanating from the Government. If plaintiffs’ title was good, and they obtained a judgment upon it against the defendants, that settled plaintiffs’ right; for the time, at any rate. Whether this would entitle plaintiffs to enjoin defendants from hereafter suing on their title, would depend upon facts additional and cumulative to those necessary to the maintenance of plaintiffs’ mere superior right to the land.
The superaddition of these facts, by which the plaintiffs sought this additional remedy, does not the less render it a suit to try the title; for the title of plaintiffs must be established as a prerequisite to the additional relief. If it be established, the plaintiffs would be entitled to a judgment to that effect, whether the additional facts alleged and proved entitled them to this additional relief or not.
The omission to indorse on the petition that the action was brought to try the title, as directed in the statute, cannot control the nature of the suit, when it necessarily involved the trial of the plaintiffs’ title; and if its character and object could have been mistaken, by which the defendants were about to be misled in their defences, they should have excepted to the petition, on that ground. (Shannon v. Taylor, 16 Tex. R.423.) The defences, putting in issue the title, show that the defendants were not misled in this regard.
We are of opinion, therefore, that the plea of res judicata was not a good defence to this action.
It will be seen by reference to the judgment, that although the Court seemed to have acted on this plea alone, the judgment goes further than its adjudication would authorize, by decreeing “that the defendants be quieted in their title to, and possession of, the land covered by the locations, surveys and patents of the said Paschal, which are situated within the boundaries set forth in the plaintiffs’ petition.” This part has reference to the pleas, of defendants setting up title in themselves, the evidence in support of which was excluded as unnecessary to determine the case. This Court could reverse that part of the decree, as not being supported by the evidence, and still leave standing that portion of the judgment which is appropriate to the. issue which was tried, to wit: that the “plaintiffs take nothing by their suit,” [553]*553&c. This the Court would do, if it were determined that the plea, which formed that issue, was a bar to the action. But having determined that it is not, does it follow that the judgment that the “ plaintiffs take nothing by their suit” must be reversed ? The plaintiffs offered no evidence in support of their title, and the defendants (or some of them) had pleaded not guilty, which put upon the plaintiffs the burthen of proof; and if the defendants had adduced no proof upon their plea of res judicata, or if their proof had been insufficient to maintain that plea, this same judgment, that “plaintiffs take nothing by their suit,” must have been rendered, because the plaintiffs were bound to recover on the strength of their own title, and had offered no evidence in support of it.
This brings us to the consideration of whether or not the Court erred in disregarding or overruling the plaintiffs’ motion for a continuance.
It is more than probable, from what appears of record, that the Court disregarded this motion for a continuance, and did not pass upon its intrinsic merits, because of the view taken of the immateriality of any evidence of witnesses, under the plea of res judicata. The motion stands, therefore, without the weight of the presumption against it, which a direct decision upon it, irrespective of the plea, would have imposed.
The petition was filed October 25th, 1854, and it does not appear when, if at all, process was served on defendants. The defendants (except Lee and Sutherland) filed their answer at the Spring Term of the Bexar Court, 3d March, 1855. Plaintiffs were ruled to give security for costs at the same Term. In this condition, and before two of the defendants had answered, the venue was changed to Hays county (the Judge being disqualified) at the instance of defendants, and the order for the change was made 19th of March, 1855. Plaintiffs not having given the bond for costs, and the time not having expired, in which the law allowed them to give it, the defendants gave the bond on the 7th day of April, 1855. The transcript was made out for a change of venue by the Clerk on 14th April, 1855. The papers were filed in Clerk’s office of the District Court of Hays county on the first day of the Court, (as stated in appellees’ brief,) which was the 17th or 18th of April, 1855. On the 17th day of April, 1855, Lee and Sutherland appeared and filed their answer, pleading, among other things, “Not guilty.” And on the 18th day of April, 1855, plaintiffs, by their attorney, applied to the Court [554]*554for a continuance, which was refused, and the overruling the application was entered of record on the minutes. The application, being sworn to, reads as follows :—
“ Comes the plaintiff by J. Pryor, one of the attorneys, and upon oath says that he cannot go safely to trial at this Term of the Court, for the want of the testimony of Antonio Menchaca and some five other witnesses, who are citizens of Bexar county and State of Texas; that the testimony of said witnesses is altogether material to plaintiffs in this cause; that the plaintiffs have i been unable to have said witnesses present at this Term of the Court, because said case was only placed on the docket of this Court on the first day of this Term, and the distance being so great from San Antonio to this place, the time has been wholly insufficient to have said witnesses present at this Term of the Court; that the plaintiffs expect to be able to have said witnesses present at the next Term of this Court; and that this application is not made for delay, hut that justice may be done.”
There can be no question about this showing for a first continuance, except as to the point relating to the excuse for not having the witnesses present at the Hays Court. If they had been subpoenaed to appear at Bexar Court, they would not have been bound to have followed the case to Hays county. After its removal to Hays county, there was not time to have them subpoenaed, or to take their depositions. Up to the time of its removal, some of the defendants had not answered, and the record does not even show that they had been served with process. Under the circumstances of the case, the showing for a continuance was most ample; and so we must believe the Court below would have held, if it had been regarded as necessary to be decided upon its sufficiency.
It is contended that the overruling of this application for continuance, not being excepted to, and contained in a bill of exceptions, is not error apparent upon the record in such manner as that this Court can revise it.
The case of Champion v. Angier, (16 Tex. R. 93,) is relied on, as establishing this doctrine. It is said there that “ the correct practice doubtless is, in no case to revise the judgment of the Court refusing a continuance, unless the party seeking a reversal on that ground has reserved the point by a bill of exceptions.” And the reason given for it was : “ When called upon to sign a bill of exceptions, the Court may state very satisfactory reasons, apparent to the Court there, which would not otherwise [555]*555be made to appear to this Court.” In that case it was decided that the application was insufficient. The intimation thus given in that case will, we trust, induce the Bar and the Courts to adopt that as the correct practice upon the subject. That case was decided after this case was argued in this Court the first time.
But ever since the organization of our Courts, up to the time of this intimation, it had been the practice, as it is believed, recognized in all the Courts, to regard the overruling of an application for continuance filed and entered of record, as apparent upon the record, for the purpose of revision by this Court. That the plaintiffs so regarded it in this case is beyond question, for really they had but little else to rely on for a reversal, and must have considered their case lost as soon as their application was overruled; and so the Court below must have regarded it, for it had it entered upon the record that “ Motion for continuance made and filed 18th April, 1855. Motion overruled.”
A practice, thus long and well established, should not be suddenly changed, to the prejudice of the rights of parties litigant.
It is not seen that the reason and spirit of the rule could apply to this case. What is it that could be known to the Judge below, that would have varied the affidavit or controlled its effect ? It could hardly be presumed that he knew that the witnesses were there, which would have been about the only answer to it, for no witnesses were produced by plaintiffs on the trial, and they lost their case without another effort after their motion for a continuance was overruled. It is not reasonable that they would have done so, had the witnesses been present.
We are of opinion that the Court erred in overruling the motion for a continuance, and in entering the decree quieting defendants’ title.
The judgment is reversed, and cause remanded.
Reversed and remanded.