Beal's Adm'r v. Alexander
| Decision Date | 01 January 1851 |
| Citation | 6 Tex. 531 |
| Parties | BEAL'S ADM'R v. ALEXANDER. |
| Court | Texas Supreme Court |
Where the instrument sued on is made a part of the petition, the court will give it the legal effect to which it is entitled, notwithstanding it may have been misconceived by the pleader, and will sustain the petition if it be intelligible and consistent, and if enough be stated to show a cause of action.
A new cause of action cannot be set up by way of amendment of the petition.
Where the petition consisted of several counts, with the instrument sued on annexed as a part of it: Held, That the court did not err in striking out all except the exhibit and the first count, which described the cause of action properly.
Quere as to what will be sufficient averment of notice to a prior indorser on special exception.
Notice from the holder, or any one liable upon the note or bill, is sufficient to bind a prior indorser; “so, if the holder or any other party give notice but to the person who is his immediate indorser on the note, yet, if notice be communicated by the latter without laches to the prior parties, the holder may avail himself of such communication of notice.”
It is not necessary to aver notice to the maker or drawer in order to hold an indorser.
In a suit by an indorsee against an indorser it is not necessary to aver or prove the competency of the maker or drawer to make the note or draw the bill.
The act of 1840, to dispense with the necessity of protesting negotiable instruments, &c., did not apply to cases in which the liabilities of the parties had been already fixed agreeably to the principles of mercantile law.
It is too late to withdraw interrogatories which have been propounded to the opposite party after they have been answered; but where the defendant's answers were not among the papers of the cause, but were in the possession of his attorney, although marked “filed,” and the defendant's attorney was in court and resisted the application for leave to withdraw the interrogatories, but not on the ground that they had been answered, making no allusion to the answers, and it did not appear that the plaintiff or his attorney knew they had been filed: Held, That there was no error in permitting the interrogatories to be withdrawn.
A paper is to be deemed to have been filed only when it shall have been delivered into the custody of the clerk, to be by him kept among the papers of the cause, subject to the inspection of the parties. If a party cause the clerk to indorse a paper filed, and immediately withdraw it from the custody of the clerk, and from the inspection of the opposite party and the court, the paper will not be considered as having been filed in contemplation of law. (Note 90.)
If a party who would claim rights arising upon a paper or pleading in the cause stand silently by, and permit the court to take action which assumes the non-existence of such paper or pleading, and do not bring it to the notice of the court, he will not be heard first in the appellate court to object that the proceedings were, in that respect, erroneous.
Error from Sabine. The plaintiff in error as indorsee sued the defendant in error as indorser upon a promissory note as follows:
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¦“$3528 28-100.¦GRENADA, Miss., 10 th October, 1838.¦
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The Bank of Grenada, Mississippi, will pay to the order of James Sims, esq., six months after date, with interest after the first day of next month, November, at the counting-house of W. M. Beal, in the city of New Orleans, Louisiana, negotiable at any bank in the United States, three thousand five hundred and twenty-eight dollars twenty-eight cents, for value received.
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¦C. J. WHARTON, Cashier. ¦F. E. PLUMMER, President. ”¦
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The original petition, filed on the 22d day of February, 1844, described the note as having been drawn by “F. E. Plummer, President,” on the Bank of Grenada, &c., and alleged that it was indorsed by the defendant, protested for non-payment at the request of one Chew, as cashier and holder, for the New Orleans Canal and Banking Company, “and the parties to the said draft, order, or note duly notified of the protest thereof;” that the plaintiff, as the last indorser, in consequence of his liability so incurred, took up the note and was the holder and owner thereof; and that the defendant, “being a prior indorser, and having had due notice of the protest of said described instrument for non-payment, is liable to pay to your petitioner said above-described sum of money, with interest,” &c. It also exhibited the note sued on, which was filed with and made a part of the petition. On the 25th of November, 1844, the plaintiff filed an amended petition, in which he alleged that “the Bank of Grenada never was situated within the limits of the Republic of Texas;” that the said F. E. Plummer, President, resided beyond the limits of the Republic,” &c.; and that “said instrument was duly protested for non-payment, of which the said Caleb P. Alexander had notice.”
At the Spring Term, 1845, the defendant answered by a demurrer, a general denial, and special matters of defense to the merits. He propounded interrogatories to the plaintiff touching the truth of the matters averred in his answer. The defendant subsequently, at the same term, withdrew his demurrer, and the cause was continued, with leave to the parties to amend.
At the Spring Term, 1846, the plaintiff filed a second amended petition, containing a description of three distinct causes of action. The petition first described the note sued on as the promissory note of the Bank of Grenada, made by its officers, the president and cashier. It set out the note in substance as it appeared as an exhibit to the original petition. It alleged that the payee indorsed the note to the defendant, who indorsed it to F. E. Plummer, who indorsed it to the plaintiff, by whom it was indorsed to the New Orleans Canal and Banking Company; that at maturity the note was presented at the place appointed for payment, and payment thereof refused, “of which said several premises the said defendant had due notice;” that after the protest of the note for non-payment he, the plaintiff, discharged his liability incurred by his indorsement by paying to the New Orleans Canal and Banking Company the contents of the note, by reason of which payment the said note was returned to the plaintiff, and that the defendant thereby became liable to the plaintiff upon and promised to pay him the contents of the note. The petition then proceeded to describe the note, or one for the same amount, of the same date, and due at the same time, as a bill of exchange drawn by the defendant upon the Bank of Grenada, payable to the plaintiff. The petition added, in form, a common-law count for money paid by the defendant for the plaintiff, at his request, on the 1st day of January, 1840. It contained the further averments that the Bank of Grenada was a foreign corporation, without the limits of the Republic, and that Sims, the first indorser, was also a non-resident.
At the Fall Term, 1847, the defendant moved the court to reject the amended petition, and at the same time made application for permission to amend his answer by withdrawing the interrogatories by him propounded to the plaintiff. The parties appearing, the court entertained the application, and gave leave to make the desired amendment, “subject to whatever exception may legally be taken.” On the next day a paper was filed by the plaintiff, signed by his counsel, containing exceptions to the order of the court permitting the amendment of the answer. No action of the court was taken upon the exceptions, nor were they otherwise brought to the notice of the court or the adverse party. The transcript contained what purported to be the answer of the plaintiff to the interrogatories propounded by the defendant, marked “filed May 25th, 1847.” It was agreed by the parties, by a statement filed by them in this court, that when the motion for leave to amend was acted on by the court the papers of the cause were examined, and there were then no answers of the plaintiff to the interrogatories among them; that the attorney of the plaintiff was present in court, and resisted the application for leave to amend, but not upon the ground that the interrogatories had been answered by the plaintiff, and that he did not inform the court that the answers had been filed or were in his possession.
At the Spring Term, 1848, the plaintiff further amended his petition, alleging that the Bank of Grenada was situated in the State of Mississippi. The defendant subsequently filed a general demurrer to the original and amended petition, and a plea of the statute of limitations. The cause coming on for trial at the Spring Term, 1849, the court, on the motion of the defendant, struck out the last two counts in the amended petition, sustained the demurrer to the original and amended petition, and gave judgment thereon final in favor of the defendant. The plaintiff brought a writ of error.
The death of the plaintiff in error was suggested in this court, and his legal representatives made parties.
T. J. Jennings, for plaintiff in error.
in permitting the defendant to amend by withdrawing the interrogatories after they had been answered. (5 Mart. R., 592; 5 N. S., 179.)
III. But the District Court not only struck out a portion of plaintiff's petition, but sustained a general demurrer to the part stricken out as well as all the rest of the petition, and in doing so we think it erred. It is to be observed that the special demurrer once filed by defendant was by himself...
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