Smalley v. Taylor

Citation33 Tex. 668
PartiesB. SMALLEY v. W. M. TAYLOR.
Decision Date01 January 1870
CourtSupreme Court of Texas
OPINION TEXT STARTS HERE

1. It is settled, that in this state a third party may intervene in a suit, to protect his own rights, and in doing so may assert an interest adversely to plaintiff or defendant; and it is believed to be immaterial at what stage of the case, previous to its final submission, this interest is interposed, provided the principal suit be not delayed to the prejudice of the other parties litigant.

2. A chose in action may be purchased while suit upon it is pending; and this court has repeatedly decided that the assignee of an open account may sue and recover judgment on it in his own name. Devine v. Martin, 15 Tex. 30.

3. Pending suit upon an open account, the defendant suggested that the plaintiff had been adjudicated a bankrupt, and thereupon a third party was permitted to intervene and set up an assignment to him of the indebtedness, made by the plaintiff anterior to his bankruptcy--the defendant objecting to the intervention, and excepting to its allowance and to rendition of judgment in favor of the intervenor. Held, that on the facts as disclosed in this record the bankruptcy of the plaintiff was not legitimately before the court; and further intimated, that although the plaintiff's assignee in bankruptcy, and possibly his creditors, could contest the alleged assignment to the intervenor, yet it was not competent for the defendant to do so.

APPEAL from Harrison. Tried below before the Hon. J. B. Williamson.

Reference is made to the opinion for the facts.

Poag & McKay, for the appellant.

No brief for the appellee.

OGDEN, J.

The appellee instituted suit in the district court against the appellant for the sum of $1,067.73, balance due on an account; and after filing the petition the plaintiff and defendants, by a written agreement, submitted all matters at issue to arbitration. The arbitrators made their award and returned the same to the district court, which appears to have been satisfactory to both parties. But before judgment was entered upon the award, and upon the suggestion by the defendant of the bankruptcy of the plaintiff, W. C. Swanson asked and obtained leave to intervene, and set up a transfer from the plaintiff to himself, made more than a year previous, of the entire subject matter in suit, and all claim and interest of the plaintiff in and to the amount due from defendant; and judgment was rendered against the defendant and in favor of Swanson for the amount of the award, from which judgment defendant appealed.

On the trial below appellant excepted to the intervention of Swanson, claimed a continuance on the ground of surprise, and excepted to the judgment being rendered in favor of said Swanson....

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14 cases
  • Price v. Cole
    • United States
    • Texas Supreme Court
    • January 1, 1871
  • Municipal Gas Co. v. Lone Star Gas Co.
    • United States
    • Texas Court of Appeals
    • February 2, 1924
    ...suit, as would warrant the court in entering a decree in his behalf. Pool v. Sanford, 52 Tex. 621; Graves v. Hall, 27 Tex. 148; Smalley v. Taylor, 33 Tex. 668; Fleming v. Seligson, 57 Tex. 524; Building Ass'n v. King, 71 Tex. 729, 12 S. W. That the interveners are interested in the subject-......
  • Rio Tire Co. v. Spectralite
    • United States
    • Texas Court of Appeals
    • January 30, 1932
    ...61 Tex. 391), although the intervener may set up a claim in the subject matter at issue adverse to plaintiff or defendant. Smalley v. Taylor, 33 Tex. 668. The view has been taken that an intervener may join with either party and resist the claim of the other (Hanna v. Drennan, 2 Posey, Unre......
  • Evans v. Abbott
    • United States
    • Texas Court of Appeals
    • September 25, 2003
    ...App.—Corpus Christi 1997, no pet.); Litoff v. Jackson, 742 S.W.2d 788, 789 (Tex. App.—San Antonio 1987, no writ) (citing Smalley v. Taylor, 33 Tex. 668, 669 (1871); Delley v. Unknown Stockholders of Brotherly & Sisterly Club of Christ, Inc., 509 S.W.2d 709, 717 (Tex. Civ. App.—Tyler 1974, w......
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