Walker v. Collins

22 Tex. 189

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheeler, Ch. J.

Conceding that it sufficiently appears by the petition, that the other makers of the note sued on, against whom the judgment was recovered, were sureties of the first signer, (Strickland,) he having died, the plaintiff might have sued the others, as sureties, without joining his administrator. (Sayles’s Pr. § 153; Scott v. Dewees, 2 Tex. Rep. 153.) A fortiori, might the sureties be sued, in such a case, where there was no administration upon the estate of the principal. And it is well settled, that where a defendant need not have been joined, and the liability of the other defendants is such, that an action can be maintained against them, without joining him, the plaintiff may dismiss as to him, and have judgment against the other defendants. (Austin v. Jordan, 5 Tex. Rep. 130.) The appellants could not require the administrator of Strickland to be joined, in the first instance. Much less can they delay the plaintiff in his action, he having resigned, for the purpose of making his heirs parties. The appellant, Walker, one of the sureties, it seems, was the administrator of Strickland, and as such, was joined in the action. If his real object was, (as alleged in his amended answer made in his personal capacity,) to have the mortgaged premises sold to satisfy the debt, he would have better attained that object, by retaining the admin-istration. He could not delay the plaintiff, by resigning, and asking the delay of publication, to make the heirs parties. The court did not err in sustaining the demurrer to the plea, and there is no error in the judgment.

Judgment affirmed.