Caldwell v. Byrne

• Decision Date: 17 April 1895
• Citation: 30 S.W. 836
• Parties: CALDWELL v. BYRNE.
• Court: Texas Court of Appeals

30 S.W. 836

CALDWELL v. BYRNE.

Court of Civil Appeals of Texas.

April 17, 1895.

Appeal from Live Oak county court; C. C. Cox, Judge.

Action by W. E. Caldwell against J. P. Lawley, as maker, and C. R. Byrne, as indorser, of a promissory note. Judgment was rendered against Lawley for the amount of the note, and a general demurrer as to Byrne was sustained, and judgment entered dismissing the case as to him. From the latter judgment, plaintiff appeals. Affirmed.

Baker & Sumners, for appellant. Beasley & Flournoy, for appellee.

FLY, J.

Appellant sued J. P. Lawley as the maker and appellee as the indorser of a promissory note for $260, alleging that the note was made in favor of appellee, was dated January 1, 1892, was due one day after date, and was indorsed by appellee on October 26, 1893. The suit was filed on August 3, 1894. A general demurrer on the part of appellee was sustained, and judgment was rendered dismissing the case as to him, and against Lawley for the amount of the note and interest. From the judgment on the demurrer this appeal is prosecuted.

Article 262, Rev. St., has the same application to negotiable instruments indorsed after maturity as to those indorsed before. Such paper may be transferred by indorsement or delivery either before or after it becomes due, and the indorser is bound upon the same grounds of notice and protest or suit in the one case as the other. Daniel, Neg. Inst. § 724. It is apparent from the face of the petition that several terms of the county court had intervened between the time of the accrual of the cause of action against the indorser and the institution of the suit, and no attempt is made, in the petition, to excuse the failure to institute the suit earlier. It is held by the supreme court that "if suit was not brought to the first term the reason of so omitting to commence the suit before the second term should be alleged and proven. It being material to allege the reasons for the delay in not bringing suit to the first term, the want of such allegation can be set up to the petition by exception and in arrest of judgment, or by writ of error, and its omission will discharge the indorsers." Elliott v. Wiggins, 16 Tex. 596. That decision is conclusive on the points in this case, and it is supported by other decisions. Yale v. Ward, 30 Tex. 17; Payne v. Patrick, 21 Tex. 680; Kampmann v. Williams, 70 Tex. 571, 8 S. W. 310; Mullaly v. Ivory (decided by this court Feb. 27, 1895) 30 S. W. 259. The judgment...