Andrus v. Pettus

• Decision Date: 01 January 1871
• Citation: 36 Tex. 108
• Court: Texas Supreme Court
• Parties: WALTER ANDRUS v. MARY E. PETTUS, EXECUTRIX, &C.

36 Tex. 108

WALTER ANDRUS

v.MARY E. PETTUS, EXECUTRIX, &C.

Supreme Court of Texas.

1871.

1.Where parties had improperly joined as plaintiffs, in a suit on two different causes of action, it was not error to permit them to amend their petition by dropping one of the partiesplaintiff, and withdrawing his cause of action.Such amendments, however, are subject to the supervision and control of the court, and should be granted only on just and equitable terms; and if a party through ignorance or carelessness joins unnecessary parties, he should be taxed with all costs up to the time of amendment.

2.In defense to a suit on a promissory note, the defendant put in a plea of set off in reconvention, alleging that the plaintiff was indebted to him in the sum of two hundred dollars for services rendered the estate of F., deceased, at the request of the plaintiff, who was administrator of the estate.Held to be a good defense, and that the court below erred in excluding evidence offered to establish the plea.

3.An administrator who employs an attorney to transact business for the estate he represents, is personally responsible to the attorney for his services, there being no special contract; but the attorney has his choice to demand his compensation either of the administrator individually, or of the estate.(Caldwell v. Young & Morgan, 21 Texas, 800, cited by the court.)

APPEAL from Fort Bend.Tried below before the Hon. Livingston Lindsay.

This suit was originally instituted in the District Court of Fort Bend county, by J. R. & W. G. Pettus, against Walter Andrus, on two notes given for medical services.One of the notes was for one hundred and twenty-eight dollars, executed by Walter Andrus to J. R. Pettus individually; the other was for thirty-eight dollars and twenty-five cents, and executed by the same party to J. R. & W. G. Pettus as a firm.

Defendant answered by plea in abatement or exception to the joinder of partiesplaintiff and causes of action, and also filed a general and special denial, and pleaded offset in reconvention against J. R. Pettus, for legal services rendered him while administrator of the estate of S. M. Frost, deceased.This was at the October term, 1868.At the October term, 1869, plaintiffs amended by dropping W. G. Pettus as a co-plaintiff, and withdrawing the note due to J. R. & W. G. Pettus.At the March term, 1870, defendant amended, and excepted to plaintiff's attempt to withdraw one note and drop one plaintiff, on the ground that such error could not be cured by amendment.The court allowed the amendment, and continued the suit on the note of J. R. Pettus, taxing the costs to that date on plaintiffs.At the November term, 1870, the death of the plaintiff was suggested, and the cause continued to make parties.At the March term, 1871, Mary E. Pettus, executrix of J. R. Pettus, appeared and made herself party to the suit, and the case was continued by the parties for arbitration.July term, 1871, the case was continued by consent.At the October term, 1871, the plaintiff filed an exception to the defendant's plea in reconvention; the exception was sustained, and the parties announced ready for trial.Verdict and judgment were had in favor of the plaintiff.Defendant moved for a new trial, and his motion being overruled he excepted and gave notice of appeal.

Gustave Cook, George Quinan, and P. E. Pearson, for appellant.

No brief for appellee has reached the hands of the reporter.

OGDEN, J.

There was no error in the rulings of the court in this cause, in permitting the plaintiff to amend his petition by dismissing the suit as to one of the plaintiffs, and by withdrawing one of the notes originally sued on, and then prosecuting his suit in his own name upon the note payable to him...