Carter v. Gray, 1845-6375.

• Decision Date: 24 April 1935
• Docket Number: No. 1845-6375.,1845-6375.
• Citation: 81 S.W.2d 647
• Parties: CARTER v. GRAY et al.
• Court: Texas Supreme Court

Page 647

81 S.W.2d 647

CARTER v. GRAY et al.

No. 1845-6375.

Commission of Appeals of Texas, Section A.

April 24, 1935.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by A. A. Gray against Claud J. Carter and another. To review a judgment of the Court of Civil Appeals which affirmed a judgment for plaintiff [52 S.W.(2d) 91], named defendant brings error.

Writ of error dismissed for want of jurisdiction.

Harry L. Carter, of Tyler, and Charles W. Anderson and Claud J. Carter, Jr., both of San Antonio, for plaintiff in error.

A. H. Lumpkin and D. H. Zook, both of San Antonio, for defendants in error.

GERMAN, Commissioner.

Defendant in error, A. A. Gray, instituted this suit in the county court of Bexar county against the plaintiff in error Claud J. Carter and Ben H. Kelly, upon a vendor's lien note in the sum of $420, which bore certain credits, the balance due at the time of filing the petition being the sum of $278.60. The sole question for decision here is whether or not the county court had jurisdiction of the cause. Plaintiff in error Carter filed a plea to the jurisdiction of the court on the ground that the note sued on was a vendor's lien note, showing on its face that it was given in part payment of the purchase price of certain property situated in the city of San Antonio, a vendor's lien being retained in the conveyance, and that the district court had exclusive jurisdiction.

The trial court overruled the plea and judgment was rendered in favor of defendant in error. This judgment was affirmed by the Court of Civil Appeals. 52 S.W.(2d) 91.

In oral argument counsel for plaintiff in error admitted that defendant in error had a right to elect to sue only for a personal judgment on the note, and not for foreclosure of the lien, and that if his pleading was construed as being an action for a personal judgment only, the county court had jurisdiction. It becomes necessary, therefore, to set out the pertinent portions of the petition and determine what cause of action was pleaded.

The first paragraph of the petition alleged that on March 23, 1928, defendant Claud J. Carter executed and delivered to Ben H. Kelly his promissory note in the sum of $420, payable to the order of Ben H. Kelly, with certain provisions with reference to interest and attorney's fees, and then proceeded to allege: "Said note being in words and figures substantially as follows." There then followed a verbatim reproduction of the note, which, after its formal portions, contained the following: "This note is given in full payment for a certain Lot or parcel of land situated in Bexar County, Texas, being Lot No. 14, block No. 15, N. C. B. No. 3420, Palm Heights Addition, to the City of San Antonio, located at 302 Jennings Ave., this day conveyed to Claud J. Carter by Ben H. Kelly and to secure the payment hereof, according to the tenor hereof, a vendor's lien is retained in said conveyance."

In paragraph 2 of the petition it is alleged that on April 28, 1928, Kelly indorsed and delivered to plaintiff said note in due course of trade and transferred same to him for a valuable consideration, and plaintiff was the owner and holder of same. The third paragraph contains the usual...