Canadian & American Mortgage Trust Co. v. Kyser

• Decision Date: 02 May 1894
• Citation: Canadian & American Mortgage Trust Co. v. Kyser, 27 S.W. 280, 7 Tex. Civ. App. 475 (Tex. App. 1894)
• Parties: CANADIAN & AMERICAN MORTGAGE TRUST CO., Limited, v. KYSER et ux.
• Court: Texas Court of Appeals

27 S.W. 280

CANADIAN & AMERICAN MORTGAGE TRUST CO., Limited, v.KYSER et ux.

Court of Civil Appeals of Texas.

May 2, 1894.

Appeal from district court, Dallas county; Charles Fred Tucker, Judge.

Action by the Canadian & American Mortgage & Trust Company, Limited, against James Knox P. Kyser and wife to recover on notes, and to foreclose a lien on land attached in aid of the suit.From a judgment for defendants, plaintiff appeals.Reversed.

The statement of the case made by appellant is adopted as the statement of this court, and is as follows: "This suit was commenced by original petition filed in Dallas countyMarch 9, 1892, by appellant, against J. K. P. Kyser, who resides in Rockwall county, for the amount due on two promissory notes, each for the principal sum of $1,000, made by said J. K. P. Kyser on March 6, 1888, payable to the order of appellant on, respectively, the 1st day of January, 1892, and the 1st day of January, 1893, and for interest thereon at 10% per annum, payable semiannually on the 1st days of January and July in each and every year, according to the terms of interest coupons attached to said notes; the notes and interest coupons providing that payment of same shall be made at Dallas, Dallas county, Texas, and that the coupons shall bear interest after maturity at 12% per annum.The original petition alleges that each of the notes provides that, in case default shall be made in the payment of any of the interest coupons for the space of five days after the same shall become due, then the principal sums in said notes, with the accrued interest, shall, at the election of the holder of the notes, be at once due and payable.It alleges the number of the coupons that are due, and describes them, and shows that default has been made in the payment of eight or more coupons for longer than five days.It alleges that the plaintiff is the holder and owner of all the notes and coupons, and has elected that they be at once due and payable, etc.Upon this original petition, attachment affidavit and bond were filed, and writ of attachment was issued, which was on March 10, 1892, levied upon certain real estate in Rockwall county as the property of James Knox Polk Kyser.On March 18, 1892, appellant filed a first amended original petition, in which Fannie Kyser, wife of James Knox Polk Kyser, was made a codefendant with James Knox Polk Kyser, and, after declaring upon the notes and coupons as set forth in the original petition, the amended original petition sets forth the issuance and levy of the writ of attachment, describing the attached lands with certainty by metes and bounds, and then goes on to allege that the defendants, James Knox Polk Kyser and his wife, claim, or pretend to claim, some homestead rights or other rights in said attached lands; and it calls upon them and notifies them to set up their homestead, and any other rights they may have in said property, and defend the same in this suit, and upon their failure to assert their rights they will be considered as having none.The amended original petition alleges that the attached property, and every part thereof, is not the homestead of defendants, and was not at the time of the levy of said writ, and that defendants have no rights in said property that would prevent a foreclosure of the attachment lien, so as to forever bind and estop them from setting up any claims or rights in said property.It prays for judgment against James Knox Polk Kyser for its debt and interest, and against both of the defendants for foreclosure of the attachment lien, and that both of said defendants be barred, foreclosed, and enjoined from setting up any homestead or other claims or rights in said attached lands; for costs and general relief.Upon this first amended original petition, citation was issued on March 18, 1892, to both defendants, and was served by the sheriff of Rockwall county, by delivering to each of them a copy of the citation, together with a certified copy of the amended original petition.The defendants failed to appear and answer as required by law, and judgment by default was taken against them on April 6, 1892.This judgment was against James Knox Polk Kyser, for $2,544.65 (that being the total amount due on the notes, and interest); and it provided that the sum of $2,052.78 (that being the amount of principal and interest not yet matured into coupons) should bear interest from date at ten per cent. per annum, payable semiannually, — the semiannual installments of interest to bear interest from their maturity at twelve per cent. per annum, — and that the sum of $491.87 (that being the amount due on the matured interest coupons) should bear interest from date at twelve per cent. per annum, and against both of the defendants for foreclosure of the attachment lien on the lands, and barring and foreclosing them from any rights of homestead, and any and all other rights in said property, and perpetually enjoining them from ever setting up any homestead or other claims or rights in said attached lands, as against the foreclosure, and title passing under the same.On May 28, 1892, James Knox Polk Kyser and wife filed a motion for new trial and to reform the judgment, in which they alleged, among other things, that the judgment rendered was improper and void, in so far as it barred and enjoined them from setting up homestead claims to the attached lands, because this matter was not properly at issue in the case, and also that the judgment awarded compound interest to the plaintiff, and in that respect was improper.On June 2, 1892, judgment was rendered, refusing the application for new trial, but reforming the judgment in the following particulars: (1) The clause...