Hinchman v. Riggins

1 White & W. 120

• Court: Court of Appeals of Texas
• Decided: November 21, 1882
• Docket: No. 2435, R. Book No. 4, p. 261
• Status: Published

Opinion

Opinion by

Willson, J.

§ 294. Joint obligors; non-joinder of, how pleaded. It is a general and fundamental rule in common law-pleading, where the action is upon a joint obligation, that all the joint obligors should be made defendants. But a non-joinder of parties defendant can only be taken advantage of by plea in abatement, except where it is shown in the petition that the party who is omitted is living, and then, as, the abatable matter appears in the petition, it may be reached by demurrer. [Davis v. Willis, 41 Tex. 154.]

§ 295. Common law rule of pleading changed by statute. Article 1201, Bev. Stats., which provides that “any principal obligor in any contract may be sued either alone or jointly with any other party thereon,” changes the common law rule above noted, and makes it no longer necessary to join as defendants all joint obligors in a suit upon a joint contract. This is the first case in which this statute has been construed and applied since its adoption.

Beversed and remanded.