
    No. II.
    Whiting v. Turley.
    (See .)
    
      Appeal from Travis County.
    
    
      
      .—Whiting v. Turley, p. 453.
      By the Act of February 5, 1840 (Gammel’s Laws of Texas, vol. 2, p. 262), Rev. Stats. 1895, art. 1181, providing that proceedings in civil suits “shall be by petition and answer,” and providing against adoption of common law system of pleading, was only intended to designate a system of pleading and not to prescribe rules. It should be strictly construed. Underwood v. Parrott, 2 T., 168. The pleader, under our system, is-not confined to the common law counts. The rules of courts of law and chancery, found in elementary treatises on pleading, are not conclusive authority in our system. Caldwell v. Haley, 3 T., 317; Mays v. Lewis, 4 T., 38; Holman v. Criswell, 15 T., 394; Payne v. Benham, 16 T., 364; Flores v. Maverick, 24 T., 526.
    
   HUTCHINSON, Justice.

Turley sued Slocomb and Whiting for that he, at their request, furnished and built for them a fence of 223 panels at $6 per panel; that they in consideration promised to pay him the amount, etc. The petition contained another demand in account. Slocomb and Whiting were both cited and pleaded in one plea, “not guilty, jointly or severally.” It was proved that Turley contracted with Slocomb to furnish the materials, etc., at the price, not naming in what currency—Whiting not mentioned—the contract being with Slocomb alone; that at the time Slocomb was not Whiting’s partner, but was working for him on hire; that the fence was built by Turley; the witnesses varying as to its quality and value. It is certified that there was no evidence that Slocomb was either the partner or agent of Whiting, or that Whiting had any interest in or knowledge of the transaction. The jury assessed $204.18¾ for Turley and found that there was no partnership between Slocomb and Whiting at the contract; that Whiting was justly bound for the sum assessed; that they had no evidence that Slocomb induced Turley to believe he was acting as agent at the time of the contract; and that the contract was made by Slocomb. After this verdict, and before reasons in arrest of judgment, Turley’s counsel moved the court to permit him to dismiss as to Slocomb, and to give judgment against Whiting. This motion was in writing. Two reasons in arrest of judgment were filed: Misjoinder of defendants; the verdict irresponsive to the issue—contradictory of the plaintiff’s allegations—inherently contradictory; and that there could not be judgment against Whiting. The court allowed the nolle prosequi moved, and gave judgment against Whiting. He appealed. The counsel for the appellant insists it was error not to have sustained the reasons in arrest of judgment, and that there was no evidence on which to charge the appellant; and the counsel for the appellee contends that the verdict responded to the allegations; that the nolle prosequi was correct, and the judgment good. It was a favorite object of the Constitution to have introduced the body of the English common law as being in the language of our people and a code to which mostly they had been accustomed. It was at length introduced so far as consistent with the Constitution, our statutes, condition and institutions; but the act of adoption was concurrently qualified by another, abolishing the common law system of pleading and requiring suits to be by petition and answer as theretofore; thus, on the subject of the pleadings, leaving us to find principles and criteria in a language generally unknown to us. Now at common law a civil prosecution embraces various parts or divisions. First, the process and bail, then the pleadings, then the postea including trial, then the judgment, the execution and the appeal, or writ of error. The pleadings are only the graphic allegations of the parties in order to the decision of the questions of law and trial of the matters of fact arising. It must be plain to every one that we are constrained for the reasons given to confine the last named statutory provision to a strict interpretation; and hence the written averments of the cause of action, of the defense of what pertains to a presentation for determination of the matters in controversy, and those only, are not to be regulated by the common law, but referred to the doctrines and jurisprudence coming to us through Coahuila. Herein we must obey the legislative will and endure as long as we may the constant perplexities that in consequence annoy and delay us at each step.

Among the principles of the common law as understood and practiced at its introduction, and not discarded as pertaining to the pleadings, are those governing the form, the parties to the action, and the proceedings of the petition and answer.

In regard to the form, this was clearly an action at law to have compensated in damages a breach of contract, and not a remedy in chancery for the redress of infracted equitable rights. If the liability was joint it was incumbent on the plaintiff below to sue all who were liable to him. If the contract had been joint and several, he might have sued any one or all. If the defendants had been partners, he might have sued such of the partners as were known to him, and the nonjoinder of a dormant or unknown partner could only have been the subject of a plea a limine. Slocomb and Whiting were here sued, not as partners, but as individuals on an assumed joint liability. This was an election by Turley of defendants from which he could not recede. He was bound to know for whom he furnished the materials and did the work and to whom he gave credit, there being no partnership trusted. Even in the instance of a joint and several liability, having made the election of whom to sue, he must abide it. The action being ex contractu, he could not, in England, discontinue as to either of several sued, until process of outlawry; and here when that proceeding would not comport with our polity ,he could not discontinue, until after the return of at least one (perhaps two) citations non est inventus. But in all actions on contract where several are sued and are arrested or cited, they are brought into court, and it is incumbent on the plaintiff to make out a case to charge them. This is the general rule, to which there are the exceptions of infancy, coverture, etc.

It is otherwise in actions ex delicto, for obvious reasons. How far our statute of amendments may relax these principles of the common law it is not material now to decide. It allows all amendments in tlie proceedings, before verdict, that shall seem necessary to reach the merits between the parties. Whether' in its utmost extension as a remedial provision, it may before verdict allow a defendant misimpleaded to be dismissed, or a new defendant introduced, we do not here determine. We all concur that in this case the discontinuance, after verdict, was a discontinuance of the action. The jury found that the contract was with Slocomb; he, therefore, was clearly chargeable. If, too, Whiting was liable, as found, the plaintiff’s case was made out, and he ought to have proceeded to judgment against both; but in regard to him the verdict is uncertain and unsatisfactory. It finds, what is in conflict with the conclusion, that he is liable; that he was not Slocomb’s partner; that Slocomb’s agency (if there was an agency) was not disclosed, and that the contract was with Slocomb. Changes of parties in chancery depend on reasons arising out of the peculiar jurisdiction of that court; as for instance it is one of its principles, that having cognizance of one branch of a transaction it will take jurisdiction of the whole, and call before it all persons concerned, so as to determine the whole at once and finally, thereby preventing multifarious and vexatious litigation.

It may be proper to notice passingly the provision in the statute requiring the district judge to proceed in the first instance to try the cause as at law, and if he can not succeed in the effort, then to ascend the woolsack and cancel it! A volume might be filled with disquisitions upon the meaning and scope of the provision. A hundred judges, in almost any conceivable case, might differ in some degree as to its interpretation and exact function. Possibly it may mean this, that in the development of what are to be adjudicated in the cause, if the judge consider them as more properly determinable according to the course and powers of a court of chancery, he may allow, the pleadings and parties to be so changed as to accomplish the object; but if so, still there ought to be put on record his order for the change, so that if illegal or improvident, it may be revised; uniformity in the application of the act is impossible. The exertion of the undefined power given is dangerous, because by the transition from the common form the trial by jury is so far evaded as to leave its intervention to the option of the judge. In this case there was no resort to this statute. The case is still where it began at law; and the nolle prosequi can not be repaired.

We all concur that there was no sufficient evidence on which to support the judgment against Whiting. It must be totally reversed.

Reversed and remanded.  