
    WISEMAN v. COTTINGHAM et al.
    (No. 2397.)
    (Supreme Court of Texas.
    March 10, 1915.)
    1. Judgment <S=u335 — Bill of Be view — Non-joinder of Codefendants.
    In petitioning for new trial of a controversy by bill of review, under Bev. St. 1911, art. 2026, providing for such new trial when judgment has been rendered upon service of process by publication, and under article 2027, requiring service of process on bill of review to be made upon parties adversely interested, it was not necessary for petitioners to join their coheirs, who had appeared personally in the suit brought against them and petitioners by one asserting a paramount title in land of their ancestor; the interest of such parties not being adverse.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 647-663; Dec. Dig. <S^335.]
    2. Election of Bemedies <®=>7 — Acts Constituting Election.
    Whore plaintiff held by assignment a note secured by lien on deceased’s land and secured an allowance of the claim against deceased’s estate in administration, there was no election to preclude her from asserting against the land a superior title thereto, acquired by purchase from deceased’s vendor subsequent to her filing claim against the estate; the doctrine of election applying only where two inconsistent remedies are at the plaintiff’s disposal.
    [Ed. Note. — For other cases, see Election of Bemedies, Cent. Dig. § 12; Dec. Dig. ®=37.]
    3. Judgment <®=»145 — Setting Aside Default Judgment — Grounds.
    Where petitioners, by tender of amount due on their ancestor’s note, could have defeated plaintiff’s recovery of their ancestor’s land, in a suit asserting the superior title plaintiff had acquired from such ancestor’s vendor, and where petitioners were served with process only by publication, the facts sufficiently justified the award of a new trial on petition, brought under Bev. St. 1911, art. 2026, providing for bill of review and new trial in suits by publication.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 271, 292-295; Dec. Dig. ⅞=>145.]
    4. Judgment @=^335 — Setting Aside Default Judgment — Proceedings—Order of Judgment.
    Where certain coheirs who had been served only by publication in suit by plaintiff to recover inherited land, petitioned for a new trial; under Bev. St. 1911, art. 2026, providing for new trial on bill of review in suits begun by publication, the judgment was also vacated as to two other heirs who had appeared personally in the suit, and, all issues being open for determination anew, the court could allow a perfect defense shown at the hearing and render judgment for petitioners.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 047-063; Dec. Dig. <S=>335.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by I. E. Wiseman against J. B. Cot-tingham and others. Judgment for plaintiff, and bill of review brought under Bev. St. 1911, art. 2026, by defendants, served only by application. Judgment for defendants (141 S. W. 817), and plaintiff brings error.
    Affirmed.
    Canfield & King and D. B. Wiseman, all of Floresville, for plaintiff in error. Webb & Goeth and Shook & Vander Hoeven, all of San Antonio, for defendants in error.
   PHILGIPS, J.

In the year 1906 T. A. Gottingham purchased from James P. West a tract of land comprising 25 acres, situated in Wilson county, paying $150 cash, and executing a vendor’s lien note for $125, the balance of .the purchase price, due October 1, 1907. The note was thereafter assigned by West to the plaintiff in error, Mrs. I. E. Wiseman. Cottingham died, and J. B. Cot-tingham qualified as administrator of his estate under appointment of the probate court of Bexar county. In the -fall of 1907 Mrs. Wiseman presented the note as a claim against Cottingham’s estate, and it was so allowed on December 4, 1907. She at that time only held the note and lien. The note was not paid, because the estate had no funds available, nor was any sale of the land had for that purpose in the course of the administration. Thereafter, on January 14, 1909, Mrs. Wiseman acquired the superior title to the land, and, with the note past due and still unpaid, on February 26, 1909, instituted a suit in the district court of Wilson county for the land against J. B. Cottingham, administrator of the estate of T. A. Cotting-ham, and individually, W. H. Cottingham, two of the heirs of T. A. Cottingham, and the unknown heirs of T. A. Cottingham, alleging the nonpayment of the note, and that, as its owner/ she had exercised her option to abandon the note and recover the land as the holder of the superior title. J. B. Cot-tingham and W. I-I. Cottingham were each personally served with citation, and due service by publication was had upon the unknown heirs. J. B. Cottingham and W. H. Cottingham made default. A guardian ad litem was appointed by the court to represent the unknown heirs, who interposed in their behalf a plea of not guilty. Upon the hearing judgment was rendered on December 22, 1909, in favor of Mrs. Wiseman, against all the defendants for the land.

On October 11, 1910, Mamie Cottingham Chambliss, joined by her husband, and Clive Cottingham, one the niece and the other the nephew of T. A. Cottingham, and representing in interest one-seventh of his estate, filed their bill of review in the district court of Wilson county, seeking to have vacated the original judgment rendered in Mrs. Wise-man’s favor. As grounds for such relief they asserted, in substance, that they resided in North Carolina and Missouri, respectively; that they had no previous knowledge of the pendency of the suit, and were not bound by the judgment because not personally served; that Mrs. Wiseman had obtained the allowance against Cottingham’s estate of her claim represented by the $125 vendor’s lien note; that the full amount due upon the note was $193, which, prior to the filing of the bill,' they had tendered to Mrs. Wiseman, and which had been paid into court for the purpose of satisfying the note; that they were entitled to have Blrs. Wiseman accept the amount due upon the note and were willing to pay her the full amount due in satisfaction of her claim for the protection of their interest in the land, which had increased in value and was worth the sum of. $1,000. J. R. Cottingham and W. H. Cottingham were not parties to the bill of review. On hearing, judgment was rendered in accordance with the prayer of the bill, vacating the original judgment entirely, requiring Mrs. Wiseman to accept $205.80, the principal, interest, and attorney’s fees due upon the note, then in the registry of the court, and a further sum amounting to all the costs, and decreeing the land to the plaintiffs for the benefit of all the heirs and the estate of T. A. Cottingham. The judgment was affirmed by the honorable Court,of Civil Appeals, and its correctness is the question presented for decision.

proceeding was under Rev. St. 1911, art. 2026, which provides that, in eases where judgment has been rendered on serv-servby publication, a defendant not appearing may obtain a new trial for good cause shown upon a sworn application, filed within two years after the rendition of the judgment. It was but a continuation of the original suit, and did not possess the character of an independent action in equity to review the judgment. While the petition was styled, un-unthe statutory term, as a bill of review, it amounted to no more than a motion for new trial, permitted in such cases by virtue of the statute, to be 'filed and heard after ad-adof the term. Mussina v. Moore, 13 Tex. 7; Miles v. Dana, 13 Tex. Civ. App. 240, 36 S. W. 848; Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S. W. 662; Wolf v. Sahm, 55 Tex. Civ. App. 554, 120 S. W. 1115, 121 S. W. 561; Ered Fred Fred (Civ. App.) 126 S. W. 900. While it is provided by article 2027 that in such cases ' the petition shall be filed and service of process made, upon “the parties adversely interested in the judgment,” it was not necessary that J. R. Cottingham and W. H. Cottingham be made parties to the proceeding and be served with process. Their interests were not adverse to those of the parties seeking the new trial, but were in common with them. Relief against the judgment was sought for their benefit, as well as heirs of T. A. Cottingham.

Mrs. Wiseman was not, in our opinion, concluded in her right to sue for the land because she had previously obtained an allowance of her claim represented by the vendor’s lien note in, the administration of Cotting-ham’s estate, upon the theory, as held by the Court of Civil Appeals, that she had elected that remedy and therefore could not pursue another. The rule of election of remedies has application only where the party against whom it is invoked has two inconsistent remedies at his disposal at the time of the supposed election. It could not reasonably have force, where at that time, he pursued the only one available to him. When Mrs. Wise-man presented her claim upon the note for allowance in the administration of Cotting-ham’s estate, she did not hold the superior title to the' land, and could not have maintained a suit for the land. She only held the note and lien, and her only remedy, therefore, was upon the note. The record shows that the estate was without any funds to pay the claim, and, after it had remained unpaid for more than a year aftet its allowance, she acquired the superior title to the land from West, the original vendor, and then, abandoning her claim upon the note, brought suit for the land as the holder of such title. Under these circumstances, she was clearly entitled to assert her subsequently acquired title. Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734.

In the suit for the recovery of the land, Mrs. Chambliss and Clive Cottingham, for themselves and the other heirs of Cotting-ham, would have had the undoubted right to tender to Mrs.'Wiseman the amount due upon the $125 vendor’s lien note, and thereby defeat her action. It was a defense, the presentation of which would have resulted in the rendition of a different judgment. They were denied the opportunity of making it through not fault of their own, as it does not appear that they had any knowledge of the pendency of the suit. Upon its assertion, therefore, and the tender into court in this proceeding of the amount due upon the note, sufficient cause was shown for the award of a new trial upon their petition. A liberal discretion should be employed in the granting of a new trial under this statute. It is plainly authorized where it appears that a defendant cited by publication has a good defense to' the suit which he was denied the opportunity of presenting, and his application is made in accordance with the statute

Under our practice the granting of a new trial upon the motion of one of several defendants vacates the judgment as to all of them. Long v. Garnett, 45 Tex. 400; Wooters v. Kauffman, 67 Tex. 488, 3 S. W. 465; Railway Co. v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Kep. 743. The effect, therefore, of the award of a new trial upon the petition of Mrs. Chambliss and Clive Cotting-ham was to set aside the judgment as to J. R. Cottingham and W. H. Cottingham as well, restoring the status the case had before the rendition of the judgment, and leaving the issues to be determined anew. Under this situation, it was competent for the court to allow the defense presented and render judgment accordingly.

The judgments of the Court of Civil Appeals and the district court are affirmed. 
      «gusoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     