Cruse v. Archer
| Decision Date | 24 July 1941 |
| Docket Number | No. 2358.,2358. |
| Citation | 153 S.W.2d 679 |
| Parties | CRUSE v. ARCHER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Navarro County; Wayne R. Howell, Judge.
Suit by Mrs. Roxana Jane Archer, joined pro forma by her husband, against E. J. Cruse. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Treadwell & Roe, of Corsicana, for appellant.
Davis, Jester & Tyson, of Corsicana, for appellee.
Appellee, Mrs. Roxana Jane Archer, a married woman, joined pro forma by her husband, P. H. Archer, instituted this suit against appellant Cruse, seeking to recover the principal, interest and attorney's fees alleged to be due her on certain notes constituting her separate property. The case was tried by the court without a jury, resulted in judgment for appellee, and is now before us on the transcript and briefs for appellant, no statement of facts or brief for appellee appearing in the record. Appellant assigns error on the action of the trial court (1) in overruling his general demurrer to appellee's petition and (2) in allowing a recovery to appellee for interest on a note constituting her separate property, when her husband merely joined her pro forma in the suit.
The caption to the original petition upon which the case was tried recites that Mrs. Archer, "joined herein pro forma by her husband, P. H. Archer", complains of the defendant Cruse "and for cause of action plaintiff, Mrs. Roxana Jane Archer, would show" etc. Throughout the body of the petition Mrs. Archer alone is referred to as the plaintiff. She alleged therein that on January 1, 1936, appellant executed his two promissory notes in the sums of $1,800 and $4,000, respectively, each being due and payable to her order on January 1, 1937, each providing for interest from date until paid at the rate of 10% and for 8% attorney's fees; that the payment of said notes was secured by a valid vendor's lien on 147½ acres of land in Navarro County; that said notes and lien were her separate property; that she had made demand for the payment of said notes and had contracted to pay her attorneys for prosecuting this suit. She prayed that she be given judgment for the principal, interest and attorney's fees due her on her notes, for foreclosure of her vendor's lien and for her costs. There is no allegation in said petition to the effect that appellee's husband had abandoned her, or had refused to prosecute the suit for her, or had refused to join her as a party plaintiff in the prosecution of the same.
The judgment appealed from recites that appellant's general demurrer, which the transcript shows was filed in the due order of pleading, is overruled; that the $1,800 note sued upon is tainted with usury and is not subject to enforcement; that the amount of principal, interest and attorney's fees due on the $4,000 note at the time of the trial on May 28, 1940, is the sum of $6,286.24; that said note is not secured by a vendor's lien or otherwise; that P. H. Archer has no interest in this suit but is only a formal party plaintiff. The judgment decrees that P. H. Archer recover nothing and that Mrs. Archer recover $6,286.24, with interest thereon from the date of the judgment until paid at the rate of ten per cent per annum as stipulated in the $4,000 note.
Article 1983 of Vernon's Ann.Tex. Civ.St. provides: "The husband may sue either alone or jointly with his wife for...
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Lesage v. Gateley
...to us that interest from promissory notes belonging to the wife must also be held to constitute community property. In Cruse v. Archer, Tex.Civ.App., 153 S.W.2d 679, this court expressly held that interest which accrued during coverture on notes constituting the wife's separate property did......
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Wade v. Wade
...following cases: Newell v. State, Tex.Civ.App., 103 S.W.2d 194, 195; Rhodes v. Taliaferro, Tex.Civ. App., 119 S.W.2d 703; Cruse v. Archer, Tex.Civ.App., 153 S.W.2d 679; Texas Bldg. & Mortgage Co. v. Rosenbaum, Tex. Civ.App., 159 S.W.2d 554; Lucas v. Dallas County, Tex.Civ.App., 138 S.W.2d T......
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Wade v. Wade
...positively averred and proven." Crenshaw v. Newell, Tex.Civ.App., 147 S.W.2d 523, point page 526, writ refused. See also Cruse v. Archer, Tex.Civ.App., 153 S.W.2d 679; Edwards v. Dismukes, 53 Tex. 605; John v. Battle, 58 Tex. 591; Barmore v. Darragh, Tex.Civ.App., 227 S.W. 522; Hill v. Kels......
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Cadwell v. Dabney, 9676.
...on a note belonging to the separate estate of the wife would be community property. Arts. 4614 and 4619, Vernon's Ann.Civ.St. Cruse v. Archer, Tex.Civ.App., 153 S.W.2d 679. If appellee is permitted to recover this interest it would be for the benefit of the community estate, the result of w......