Opinion · Texas Supreme Court
Cox v. Johnson
25 Tex. Sup. Ct. J. 418
- Type
- Opinion
- Court
- Texas Supreme Court
- Jurisdiction
- Texas
- Date
- 1982-07-07
- Topic
- litigation
holding that the failure to join an indispensable party generally is not fundamental error because seldom will the absence of an indispensable party deprive the trial court of jurisdiction to adjudicate between the parties already joined | holding that the failure to join an indispensable party generally is not fundamental error because seldom will the absence of an indispensable party deprive the trial court of jurisdiction to adjudicate between the parties already joined | holding that the failure to join an indispensable party generally is not fundamental error because seldom will the absence of an indispensable party deprive the trial court of jurisdiction to adjudicate between the parties already joined | holding complaint about nonjoinder of indispensable party ineffectual when error raised for the first time on appeal because nonjoinder was not a matter of fundamental error | explaining that, under Rule 39 as amended, the failure to raise nonjoinder at trial is not fundamental error, and because it is not, the error 8 must be preserved in the trial court to preserve it for appeal | disapproving of this Court's holding that failure to join a necessary party was fundamental error, but denying the writ of error because of other meritorious issues in the appeal | fundamental or unassigned error is a discredited doctrine which survives today only in rare instances | supreme court "disapproved" of this Court's holding that failure to join a necessary party was fundamental error, but denied the writ of error because of other meritorious issues in the appeal | per determine the standing of an organization like TAB. For curiam
Citator
- Cited by
- 42 opinions
This is a suit brought by Paul Cox to recover on a promissory note executed by Glenn Johnson. The trial court rendered a default judgment for Cox and overruled Johnson’s motion for new trial. The court of appeals reversed the judgment of the trial court and remanded the cause for a new trial, holding that the trial court had committed fundamental error in allowing recovery on the note without the joinder of a joint payee. 630 S.W.2d 492. We refuse the application for writ of error of Paul Cox, no reversible error; however, we dis *868 approve the holding of the court of appeals that the failure to join an additional party constituted fundamental error.
The court of appeals held the trial court erred in rendering judgment for Cox without joinder of Dan M. Bates, the joint payee on the note. This error was raised for the first time on appeal. The court of appeals relied upon our decision in Petroleum Anchor Equip, v. Tyra, 406 S.W.2d 891 (Tex.1966) and its own decision in Hinojosa v. Love, 496 S.W.2d 224 (Tex.App.—Corpus Christi 1973, no writ), in holding that failure to join Bates was fundamental error.
Fundamental or unassigned error is a discredited doctrine. See American General Fire and Casualty Co. v. Weinberg, 639 S.W.2d 688, 25 Tex.Sup.Ct.J. 405 (1982); Texas Industrial Traffic League v. Railroad Commission of Texas, 633 S.W.2d 821 (Tex.1982); Buckholts Ind. School Dist. v. Glaser, 632 S.W.2d 146 (Tex.1982); Pirtle v. Gregory, 629 S.W.2d 919 (Tex.1982); Greater Fort Worth & Tarrant County Community Action Agency v. Mims, 627 S.W.2d 149 (Tex.1982); Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex.1981); Hooks v. Texas Dept. Water Resources, 611 S.W.2d 417 (Tex.1981). Fundamental error survives today only in those rare instances in which the record shows on its face that the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes and constitution of this state. Texas Ind. Traffic League v. Railroad Commission of Texas, supra; Pirtle v. Gregory, supra; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947).
Petroleum Anchor Equip, v. Tyra was decided before amendments to the Texas Rules of Civil Procedure changed our approach in dealing with a defect of parties from one which emphasized jurisdiction to an approach based solely upon pragmatic considerations. Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 203 (Tex.1974). Under our present rule, “[i]t would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined.” Cooper v. Texas Gulf Industries, Inc., supra at 204. The failure to join Dan M. Bates was not a matter of fundamental error. Pirtle v. Gregory, supra; Cooper v. Texas Gulf Industries, supra. The contrary holdings of the court of appeals in the present case as well as in Hinojosa v. Love are disapproved.
Johnson raised other meritorious defenses in his motion for new trial and his brief in the court of appeals. Therefore, the judgment of the court of appeals is correct, and we refuse the application for writ of error of Paul Cox, no reversible error.