Bremond v. Manley
| Decision Date | 31 January 1868 |
| Citation | 31 Tex. 7 |
| Parties | PAUL BREMOND v. JOHN H. MANLEY. |
| Court | Texas Supreme Court |
Where S. instituted a suit against B., and pending the suit S. died, and his wife Elizabeth, as widow, petitioned to revive as the only heir; whereupon M. claimed the negotiable security declared upon as intervenor, and upon consultation between the widow and the intervenor the right was decided in favor of the intervenor, and thereafter he prosecuted the suit in his own name. He obtained judgment against the defendant, who seems to have proved nothing at the trial. In the absence of a statement of facts there is no such error as the court can notice.
If there was error as to the rightful ownership of the draft, that was a matter between the intervenor and the widow, and she not having appealed, the court cannot see how the defendant, who was the acceptor, was prejudiced.
ERROR from Harris. The case was tried before the Hon. JOHN R. KENARD, one of the district judges.
This suit was instituted by one George Stevens against the plaintiff in error in the district court of Harris county, on the 24th day of September, 1860, on a draft or order drawn on the plaintiff in error by C. H. Day for $208.11 in favor of John Galigher, dated 25th October, 1859, accepted by Paul Bremond, and payable 1st December following; which draft, as is alleged in plaintiff's petition, was indorsed and transferred to one John Johnson, and by Johnson to George Stevens, who brought the suit.
At the November term of the district court, 1860, the defendant, by his attorney, filed his plea of general denial; and on 3d December, 1860, by leave of the court, the defendant filed an amended answer, setting up a good and legal defense to the action.
From this time until June, 1866, the record does not show that there was any action had in the cause.
On 15th June, 1866, Elizabeth Stevens petitioned the court, setting forth that she was the widow of George Stevens, plaintiff aforesaid, alleging that her husband died in the month of February, 1861; that she was his only representative, and asked that the suit be revived in her name. The petition also alleged the death of J. B. Dart, the attorney who had brought the suit, and that one James Masterson had appeared as attorney in the cause; that the interests of Masterson were averse to hers, and therefore she prayed the court to order Masterson to deliver up the papers and the further management of the cause to S. J. Adams, Esq.
Upon the hearing it appears that the prayer of Mrs. Stevens, to cause the suit to be revived in her name, was overruled by the court; but no action was taken in regard to the other part of her complaint, and James Masterson, Esq., continued to act as plaintiff's attorney in the cause.
On 3d December, 1866, John H. Manley appeared by James Masterson, Esq., and filed his petition, asking leave to intervene, and that the suit be prosecuted for his benefit. And on the same day the court authorized John H. Manley's name to be substituted for the original plaintiff, who was then dead, and ordered the cause to proceed in his name. And on 13th December, 1866, John H. Manley, the plaintiff, appeared and announced himself ready for trial, submitted the matter to a jury, and obtained a verdict, upon which the judgment was rendered of which the plaintiff in error complained.
D. J. Baldwin, for plaintiff in error. While the suit did not abate on the death of Stevens, it was held in abeyance,...
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