Carter v. Eames

• Decision Date: 01 January 1876
• Citation: 44 Tex. 544
• Parties: J. J. CARTER AND WIFE v. D. W. EAMES.
• Court: Texas Supreme Court

44 Tex. 544

J. J. CARTER AND WIFE

v.D. W. EAMES.

Supreme Court of Texas.

1876.

APPEAL from Walker.Tried below before the Hon. J. R. Burnett.

This suit was filed in the District Court of Walker county on the 24th February, 1874.The suit is founded on a non-negotiable note executed by Carter and wife payable to “W. N. Crawford, agent of Thomas B. Bodley.”The original petition declares upon this note in the name of D. W. Eames, as one indorsed in blank by Bodley, the payee.The petition also sets up a mortgage upon a mill and machinery, which was executed to secure the payment of the note, and is made an exhibit to the petition, and a judgment is asked upon the note and a foreclosure of the mortgage on the mill and machinery.On the 19th March, 1874, the defendants pleaded, 1st, a general demurrer; 2d, a general denial of all the allegations in the petition; 3d, special plea and answer, in which they admit the execution of the note and mortgage declared on, and set up also a failure of consideration and damages for a breach of the contract, particularizing them with a bill of particulars, &c.The answer was not demurred to.Mrs. Carter also filed a separate answer on the same day, which it is not necessary to notice further.On 2d April the appellee filed an amended petition, in which he sets up a new and distinct security for the payment of the notes sued on, to wit, a trust deed dated 10th April, 1872, on a tract of land in Angelina county.This amendment was filed on the 2d April, and the cause was called for trial next day, the 3d April.When the cause was called for trial Carter and wife objected to being forced to trial upon the pleadings as amended, without service of the amended petition filed on the day before the cause was called for trial, claiming that as the amended petition claimed a more onerous judgment than the one asked for in the original, they were, under the law, entitled to service of the amendment.The court overruled appellant's objections and compelled them to go to trial without service of said amended petition, whereupon they filed an answer instanter, wherein they expressly reserve and except the right to be served with a certified copy of the amended petition filed the day before, intending, as they say, in no way to waive their right to the service thereof, and except to the ruling of the court in overruling the right to said service made in limine.The appellants then filed written motion for a continuance, which was overruled, to which they took a bill of exceptions, and they were forced into trial.A verdict and judgment was rendered for the appellee for the amount due on the note and a foreclosure of the mortgage upon the mill and machinery and the land in Angelina county.The appellants' motion for a new trial being overruled, they appealed.

J. M. Maxey and W. A. Leigh, for appellants, cited the following authorities: De Walt v. Snow, 25 Tex., 320;Gregg v. Johnson, 37 Tex., 558;Merlin v. Manning, 2 Tex., 351;Ross v. Smith, 19 Tex., 171;Merrill v. Smith, 22 Tex., 53;Evans v. Pigg, 28 Tex., 586.

Randolph & McKinney, for appellee.

ROBERTS, CHIEF JUSTICE.

The appellee obtained a judgment upon the obligation sued on against J. J. Carter, and against J. J. Carter and wife, on the mortgages given by them upon certain mill machinery, for which the obligation was given, and upon a tract of land in Trinity county.

The defendants below pleaded the general denial and failure of consideration, but offered no evidence whatever in support of it.Mrs. Carter pleaded her coverture, and for that reason no judgment was rendered against her for money but only for the foreclosure of the mortgages, which she had signed with her husband and privately acknowledged according to law.

The record in this case therefore presents defendantJ. J. Carter in the defensive only, as seeking to resist the case made by the plaintiff by certain errors committed in the proceedings of the District Court, which have been assigned as grounds of error.

There is an attempt to make an additional assignment of errors in this court after the record had been filed here, which cannot be permitted, except by consent, which has not been given in this case.Such errors, therefore, as have been assigned below and come up with the record will be considered, and those alone.

The first error assigned is that the court erred in forcing defendants into trial without service of an...