Dittman v. Iselt

• Decision Date: 31 May 1899
• Citation: 52 S.W. 96
• Parties: DITTMAN v. ISELT et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

52 S.W. 96

DITTMAN v. ISELT et al.¹

Court of Civil Appeals of Texas.

May 31, 1899.

Appeal from district court, Colorado county; M. Kennon, Judge.

Action by Anna Dittman against John Iselt and others. From a judgment granting less relief than that demanded, plaintiff appeals. Reversed.

Geo. McCormick, for appellant. Stayton & Berry, for appellees.

FLY, J.

Appellant, by her original petition, sought to recover judgment on a promissory note for $547.10 against John Iselt, Sr., as principal, and Johanna Iselt and Henry Iselt as sureties, and also alleged that a certain note for $435 given by August Iselt to J. P. Morris, and expressly secured by a vendor's lien on land in Dewitt county, had been placed with appellant as collateral security, which note had been indorsed by Morris to E. H. Wangemann, and by him to John Iselt, and by the latter to appellant. Some of the parties interposed a plea of limitation to the note, and appellant filed amended pleadings, alleging that the superior title to the land was held by J. P. Morris, the vendor, in trust for her, and asking that he be made a party, and the superior title vested in her in case the plea of limitation was sustained. To the amendment exceptions were urged, on the grounds that the district court of Colorado county did not have jurisdiction, because the land sued for was situated in Dewitt county, that the note was barred by limitation, that it was not affirmatively pleaded that Morris held the title in trust for appellant, and others not necessary to mention. Morris disclaimed any interest in the land. The court sustained the exception as to limitation, and held that the transferee of a vendor's lien note is not authorized to sue and obtain from the vendor of land the superior title held by him, after a note given for the purchase money is barred by limitation, and that, in so far as the suit was to recover the superior title to the land, the district court of Colorado county had no jurisdiction. Judgment was rendered in favor of appellant against John Iselt, Sr., Johanna Iselt, and Henry Iselt, for the amount of the note executed by them, and against appellant as to the other parties.

The parties who urged the exceptions to the amended pleadings were properly before the court under the original petition, and pleaded the statute of limitations in answer thereto. To meet that plea, the amended pleadings were filed. The court having obtained jurisdiction of the case, the subsequent ingraftment of the supplemental cause of action upon the original cause of action by the amended pleadings did not deprive the court of jurisdiction. Kendall v. Hackworth, 66 Tex. 499, 18 S. W. 104.

It is well settled that the requirement that suits for the...