The plea that appellants had not filed their application for a new trial of said cause within two years after the rendition of the judgment and final decree therein, was not interposed by appellants in the trial court, either by special exception or by way of defense. And appellants contend that such plea can not now be presented and urged, because they say the statute relied on by appellees is one of limitation; that the rule of pleading and practice in reference to such statute must be observed, and, unless pleaded in the court below, either by exception or as a defense, in bar of appellants' right to recover, they can not avail themselves of the provisions of said statute in this court.

Appellants further contend that such a plea would have availed appellees nothing, if it had been pleaded in the court below, because they say that the application for a new trial of Samuel Ashmore et al. was filed within the time 'prescribed by the statute, and inured to the benefit of appellants, if they are the real heirs of Thomas C. Bean.

We do not concur in this contention. If the intervention of appellants, setting up that they were the heirs of Thomas C. Bean, and asking that the judgment and decree entered in the original suit be set aside and a new trial awarded them, was not filed within two years after said decree was rendered (and that it was not is not a controverted issue in the case), and if the application of Ashmore et al. did not inure to the benefit of the appellants and stop the running of limitation as to them, then we regard the failure of the trial court to sustain appellees' demurrer, or, at the suggestion of appellees or upon its own motion, to dismiss appellants' intervention, fundamental error, and can be taken advantage of and urged in this court. The right to open up the judgment after the adjournment of the term at which it was rendered by application of this character is statutory, and not a right given at common law, and if the right was not availed of within the period fixed by the statute the remedy and right were lost.

The question then is: Did the filing of the intervention of Ashmore and others, within the time prescribed by law, asking that said judgment and decree be set aside and a new trial granted, inure to the benefit of appellants and suspend the running of limitation as to them? We think not. There is no privity of estate or community of interest between appellants and appellees with respect to the property sought to be recovered. There was no such estate or interest with respect to said property existing between appellants and Samuel C. Ashmore and those who joined with him in filing his intervention asking for a new trial of said original suit. Ashmore and others, in their intervention, claimed adversely to appellants and all others, asserting that they were the heirs of Thomas C. Bean. They did not allege that there were any heirs, known or unknown, who were interested in, and owned jointly with them, said estate or any part of it, and hence necessary parties to their suit for a new trial. They allege the names of certain parties claimed to be adversely interested to them, and pray that they and the "unknown" heirs of Thomas C. Bean be served with citation, but their

prayer that the unknown heirs of Thomas C. Bean be served with process to appear and answer in said suit was manifestly insincere and made with no intention to have such process issued. They took no steps so far as the record shows, aside from the prayer, to have it issued, notwithstanding their application was pending more than six years before a trial was had.

The precise question before us has not, to our knowledge, been decided by any of the courts of this State. Strongly analogous cases, however, in our opinion may be found. It is settled law in our courts and in the courts of many other States, though the contrary is held in some of the States, that a tenant in common may sue for and recover lands, as against a stranger or trespasser, on behalf of himself and his cotenant, and yet it seems that such suit would not stop the running of the statute of limitation as against the interest of the cotenant not suing. Baldwin v. Johnson, 95 Texas, 85; Ney v. Mumme, 66 Texas, 268; Davidson v. Wallingford, 88 Texas, 525.

The case of Stovall v. Carmicheal, 52 Texas, 389, was an action of trespass to try title, and Judge Gould, delivering the opinion of the court, said: "Our opinion is that the institution by James T. Stovall of an ordinary suit of trespass to try title, there being nothing to indicate that the suit was brought on behalf of any other part owner, did not operate to stop the running of limitation against others than himself. Such was the rule recognized and enforced by this court in Burleson v. Burleson, 28 Texas, 210." Proceeding, he says: "A somewhat analogous case is, when one of two tenants in common is under disability which prevents the running of limitation against him. The rule seems to be that if the other tenant in common might have sued alone (as doubtless he might in this State), he is not protected from the effects of limitation, and that in such case the party under disability and not barred can recover only his moiety. [Citing Freem. on Cotenancy, sec. 377; Ang. on Lim., sec. 484.] As between him and other joint owners his beneficiary acts will inure not to his exclusive benefit, but to the benefit of all. But it is also true that by the institution of an unsuccessful suit he binds no one but himself; other joint owners can not be estopped by a judgment against him." See also, Johnson v. Schumacher, 72 Texas, 334.

In Burleson v. Burleson, 28 Texas, 385, it appears that two of the plaintiffs had conveyed their interest in the land in controversy before the institution of the suit. Their vendees were not joined as original plaintiffs, but they subsequently intervened and asserted their rights, and it was held that, as to their interest, if the statute of limitation began to run before suit, it did not cease to run against them until they intervened. Before that time their interests were not in litigation. Again, it has been held, "that a defendant claiming land in controversy against his codefendant will not be considered as having filed his action so as to stop limitation until his claim is set up by answer or cross-bill.

Limitation as to his interest is not stopped by the original suit against his codefendant." Griggsby v. May, 84 Texas, 241.

Paschal v. Owens, 77 Texas, 583, is a case where the surviving wife and mother sued for the unlawful and malicious killing of her husband, and by amended petition, filed more than one year after her husband's death, the surviving children of the deceased joined in said suit. The court charged that the children could not recover, and on appeal it was held that the charge was correct, their rights being barred.

There is no pretense in the present suit that Ashmore and others and appellants have any joint interest whatever in the property to which they seek to establish title and ownership. On the contrary, their respective claims, if any they have, are entirely separate, distinct and adverse.

The decree of partition and distribution of the estate of Thomas C. Bean, deceased, not having been set aside or appealed from, became final at the expiration of the term of the court at which it was rendered, and jurisdiction over the parties and subject matter of the litigation could only be conferred upon said court and called into exercise thereafter by filing therein within the time prescribed by article 1375 of the Revised Statutes a bill of review or application for new trial. The time prescribed within which such bill or application may be filed is two years. Appellants' bill or application for new trial in this case was not filed until more than six years had elapsed.

We believe that appellants by the lapse of time lost any right they may have had to ask that the judgment rendered in the case of Sarah A. Dove et al. v. H. P. Howard et al. be set aside and an opportunity afforded them to contest their right to the property distributed among said parties; and having reached this conclusion, and the judgment of the District Court being that appellants take nothing by their suit, we believe the proper disposition to make of this appeal is to affirm the judgment of that court, and it is so ordered.

ON MOTION FOR REHEARING.

Affirmed.

Appellants have filed a motion for rehearing in this cause, in which, among other things, they complain of the action of this court in calling their appearance and pleading in the case an intervention. When Ashmore and others filed their petition for review or new trial they prayed that the unknown heirs of T. C. Bean be made parties. No citation, however, was issued, and on the 16th day of September, 1902, appellants voluntarily appeared and filed what is indorsed and called an "original answer." In this pleading they say, "they are unknown heirs of T. C. Bean, heretofore made parties to this suit, and against whom Samuel Ashmore et al., plaintiffs in the suit for new trial in this cause, seek a recovery, and enter their appearance in this cause in answer to the petition for a new trial filed by said Samuel Ashmore et al., and for such answer show the court that they, together with Darius May, who

resides in the Province of Quebec, in the Dominion of Canada; Harriett Glover, whose husband is Glover, and who resides in Orleans County, in the State of Vermont, and Esther Morgan, who resides in the city of Waltham, in the State of Massachusetts, were the unknown heirs of T. C. Bean, heretofore made parties to this suit as set forth in the said petition of said Samuel Ashmore and others. That these defendants, together with the said persons named in the immediately preceding paragraph of this answer, were at the time of the rendition. of the judgment described in the said petition of Samuel Ashmore et al., and are now the sole heirs of said T. C. Bean." They further alleged that the "parties in whose favor said judgments were rendered were not heirs of the said T. C. Bean, and are not and were not entitled to the property belonging to the said T. C. Bean, left at his death. That at the time of the rendition of said judgments these defendants, and the persons hereinbefore named as coheirs with them of the said T. C. Bean, were the sole heirs of the said T. C. Bean, and now are his sole heirs, and were then and are now entitled to all the property belonging to the estate of the said T. C. Bean. They deny that plaintiffs in the suit for a new trial herein, to wit, Samuel Ashmore et al., are heirs of the said T. C. Bean, and deny that said Samuel Ashmore et al., or any of them, are entitled to any of said property." Said pleading, among other things, further alleges the interest claimed by each of appellants and said coheirs, and prays that said alleged coheirs, Darius May, Harriett Glover and Esther Morgan, be made parties, and be cited to answer herein, and upon final hearing that judgment be rendered setting aside. the said judgments heretofore rendered, and adjudging appellants and said alleged coheirs to be the sole heirs of said T. C. Bean, and that all the property belonging to the estate of the said T. C. Bean be distributed among them in accordance with their several interests, for partition, for costs and for general relief.

Tested by these averments, we believe appellants, although nominating themselves defendants, are practically and in effect interveners, and that their appearance and pleading herein has been properly characterized by us an intervention. We adhere to the views expressed in our original opinion, and the motion for rehearing is overruled.

Writ of error refused.

Overruled.

GALVESTON & WESTERN RAILWAY COMPANY V.
CITY OF GALVESTON.

Decided November 3, 1903.

1.-City Taxes-Recovery-Interest.

The right of the city of Galveston to recover for delinquent taxes, with interest thercon at 8 per cent, is aturmed in accordance with the rulings of the Supreme Court upon certified questions in this case, as reported in 96 Texas, 520 2. Same-Pleading.

Allegations as to the levy and assessment of city school taxes stated and held sufficient in an action to recover such taxes.

3.-Same-Double Assessment.

A rendition and assessment of several miles of railroad lying within the city limits, by which the trackage and the realty-the latter consisting of lots and blocks purchased and owned by the railway company for right of way— were valued as distinct items, did not constitute a double assessment.

Error from the District Court of Galveston. Tried below before Hon. Robt. M. Franklin.

Gresham & Gresham, for plaintiff in error.

J. Z. H. Scott, for defendant in error.

GILL, ASSOCIATE JUSTICE.-This suit was brought May 20, 1896, by the city of Galveston against plaintiff in error, a railroad corporation, for the purpose of recovering delinquent taxes alleged to be due the city by the company, on property owned by the company and situated in said city, together with 8 per cent interest thereon. On June 9, 1902, the pleadings of plaintiff were amended so that recovery was sought for the city taxes alleged to be due for the years 1893 to 1899, inclusive.

A trial on June 23, 1902, resulted in a judgment in favor of the city, but only 6 per cent interest was allowed.

The property alleged to be liable for taxes for each year is fully described, and the total tax per $100 for municipal purposes and the total tax for school purposes is alleged, but the various municipal purposes for which the municipal tax was levied, and the various funds for the benefit of which they are levied, is not alleged. The allegations as to the levies of the municipal and school taxes for the first year sued for are as follows: "Plaintiff's city council by ordinance duly passed levied and ordered to be collected ad valorem taxes amounting to $1.50 for municipal purposes and 20 cents for the support of public schools upon each $100 valuation of all real, personal and mixed property within the corporate and territorial limits of the city of Galveston," and the allegation is repeated as to the taxes alleged to be due for each year sued for. The petition then alleges that on the 1st day of January and the 1st day of October of said year certain property, a list of which is set forth, was situated in said city and subject to taxation under said ordinances, and sufficiently alleges its rendition valuation, assessment, etc.

These are the entire allegations with reference to the passage of the