Barnard v. Tarleton

• Decision Date: 16 October 1882
• Docket Number: Case No. 3539.
• Parties: GEORGE BARNARD v. MRS. M. L. TARLETON ET AL.
• Court: Texas Supreme Court

57 Tex. 402

GEORGE BARNARD

v.MRS. M. L. TARLETON ET AL.

Case No. 3539.

Supreme Court of Texas.

Oct. 16, 1882.

ERROR from McLennan. Tried in 1875 before Hon. D. M. Prendergast.

This suit was instituted by George Barnard on a promissory note secured by a deed of trust, both executed by Max Gervais, one of the defendants. The plaintiff in the same suit proceeded by sequestration against a certain brick kiln, which plaintiff alleged was embraced in the deed of trust; and the petition alleged that certain parties, who were made defendants, viz., T. A. Johnson (who died pending the litigation, his death suggested, his widow and her subsequent husband, John Tarleton, being made parties), W. A. Fort, and G. W. Jackson, were in adverse possession of the same, claiming to own said brick under a pretended sale from their co-defendant, Gervais. All of the defendants appeared and answered. The cause was submitted to a jury under the charge given by the court, but they failing to agree to a verdict, by consent of parties the cause was withdrawn from the jury and submitted to the judge presiding upon the evidence which had already been adduced, to determine the same upon the facts as well as the law. The court rendered judgment for the plaintiff for the amount of the note, with interest and his costs, against the defendant Gervais, and adjudged that the plaintiff “take nothing as against the defendants M. L. Johnson, W. A. Fort and G. W. Jackson,” and adjudged them their costs against the plaintiff.

The plaintiff prosecutes this writ of error. The petition for writ of error complained against the judgment so far only as it was rendered against the plaintiff in error in favor of the defendants Johnson, Fort and Jackson, and the petition for writ of error prayed for citation only as to defendants John Tarleton and wife, and as to said Fort and Jackson. Citations were issued and served accordingly, pretermitting defendant Gervais. The writ of error bond was not made payable to Gervais, but to the other defendants.

The plaintiff in error assigned as error the following grounds:

1st. The judgment of the court is contrary to the law and evidence.

2d. The court erred in construing the mortgage or trust deed sued on by plaintiff, as shown in his charge.

3d. The court erred in holding that the purchase of the brick by Johnson and Fort and Jackson, or either of them, before the maturity of the note sued on, although they had notice of the trust deed, if said purchase was absolute and not conditional, passed the title to said brick.

4th. The court erred in giving judgment against plaintiff, in favor of defendants Johnson, Fort and Jackson.

There were no exceptions taken to the charge of the court, nor were any counter instructions or supplemental instructions asked to be given to the jury.

Herring, Anderson & Kelley, for plaintiff in error.

J. M. Maxcy, for defendants in error.

WALKER, P. J. COM. APP.

The failure to make the defendant Gervais a party to this writ of error proceeding, and to cite him duly as such, and to comply with the law otherwise, by making the writ of error bond payable to him, alike with the other defendants in error, is fatal to the maintenance in the...