Another v. Nichols

• Decision Date: 01 January 1853
• Citation: Cummings v. Nichols, 9 Tex. 527 (Tex. 1853)
• Court: Texas Supreme Court
• Parties: CUMMINGS AND ANOTHER v. RICE & NICHOLS.

9 Tex. 527

CUMMINGS AND ANOTHER

v.RICE & NICHOLS.

Supreme Court of Texas.

1853.

A party signing by the initials of his christian name may be sued in the same manner.

Where the petition was against U. S. Cummings, and the citation was issued to and served upon Uriah Cummings, it was held that the variance between the petition and writ was immaterial. (Note 94.)

The filing of an amendment by the plaintiff on the eve of trial does not entitle the defendant to a continuance on the ground of surprise; but it must be shown by affidavit that the defendant has a good defense, and the filing of the amendment makes necessary the attendance of witnesses or the procurement of evidence which was not procured, because not expected to be needed until after the amendment.

A waiver by the indorser of suit against the maker at the first term of court, which is accepted by the indorsee, does not prevent the indorsee from suing the maker and indorser at the first term.

Error from Walker. Suit commenced Fall Term, 1852, by the defendants in error against the plaintiffs in error on a note dated March 5th, 1852, payable one day after date, signed by Cummings and alleged to have been indorsed same day to the plaintiffs by Tousey, the payee. The petition gave the name of one of the defendants as U. S. Cummings. A citation was issued to Uriah S. Cummings, and was returned executed. Cummings excepted to the citation and service, because it did not correspond to the petition. He also filed a general denial. Tousey demurred generally, and filed a general denial. When the case was called for trial, and after argument of Tousey's demurrer, the plaintiffs amended by filing the following exhibit, and connecting it with the petition by suitable averments:

“I have this day transferred, by indorsement to Rice & Nichols, for the benefit of William Calhoun, successor of Calhoun & McDurfee, the following notes,” (including note sued on,) “and guarantee the final payment of the same, and extend the time until the 2d term of court from date. July 12, 1852. Isaac Tousey.” Thereupon the defendant Tousey claimed a continuance on the ground of surprise, which was refused by the court, and Tousey excepted. The exceptions of Cummings and the demurrer of Tousey were then overruled. Judgment for plaintiffs.

The errors assigned were:

1st. Overruling exceptions of defendant Cummings.

2d. Overruling Tousey's application for a continuance.

3d. Overruling Tousey's demurrer.

A. P. Wiley, for plaintiff in error. In support of the first assignment of error the court is referred to arts. 671, 674, 675, Hart. Dig., p. 242. In support of the second assignment, it is submitted that the amendment set up entirely new matter, which upon its face presented a new issue, upon which the defendant Tousey was entitled to time to procure proof. (See Tourtelot v. Tourtelot, 4 Mass. R., 506;Homes v. Lansing, 1 Johns. Cas., 248; Watts v. McKenney, 1 Marsh. R., 561; Cabanis v. Lyon, 3 J. J. Marsh. R., 332; 4 Litt. R., 335; Rankin v, Cooper, 1 Browne R., 253; Nixon v. Brown, 3 Blackf. R., 504; Wright v. Basye, 6 Blackf., 419;5 Blackf., 84.) In support of the third assignment, the amendment disclosed an agreement to extend the time of suing, and showed that the present suit was premature, or at all events it was sufficiently ambiguous to let in parol proof to explain, which the defendant Tousey should have been allowed time to procure.

Yoakum & Campbell, for defendants in error. This cause is taken up for delay. The plaintiffs below had the right to amend their petition by stating that the note was indorsed by Tousey on the 12th July, 1852, instead of on the day the note was made, and also to append to that amendment a memorandum signed by Tousey, showing the actual time of the transfer. This was no ground of surprise to Tousey. The question of his liability would be determined by the facts. He knew what they were. He set up no other defense. The conclusion is, he had no other. Still less had Cummings any right to be surprised, as he made the...