Dyer v. Dement

• Decision Date: 01 January 1872
• Citation: 37 Tex. 431
• Parties: S. B. DYER v. J. B. DEMENT.
• Court: Texas Supreme Court

37 Tex. 431

S. B. DYER

v.J. B. DEMENT.

Supreme Court of Texas.

1872.

1. When there is no assignment of errors and no brief for either party, this court is justified ordinarily in dismissing the appeal, for want of prosecution. But there being material error apparent on the face of the present record, that practice is not applied.

2. On a note for less than one hundred dollars, the plaintiff sued in the District Court, alleging that the note was given for the purchase-money of land, and therefore he prayed enforcement of the vendor's lien. But, at the trial of the cause, all the evidence concurred in proving that the consideration of the note was not purchase-money of land. Held, that the court below should have instructed the jury that there could be no vendor's lien, and, on verdict in accordance with such instruction, the cause should have been dismissed for want of jurisdiction in the District Court.

APPEAL from Rains. Tried below before the Hon. Z. Norton.

The opinion states the case.

No briefs.

OGDEN, J.

An appeal was taken in this cause from a judgment of the District Court of Rains county; but no assignment of errors accompanies the transcript, and no briefs have been filed by appellant or appellee, and under the usual practice of this court we would be justified in dismissing the cause for the want of prosecution, and without further notice. But upon examination, we discover an error apparent upon the face of the record, which may have worked great injustice to one of the parties thereto, and which demands a reversal of the judgment.

Suit was instituted upon a promissory note for fifty-nine dollars and sixteen cents, and to foreclose the vendor's lien upon a certain tract of land. The defendant excepted to the petition, and plead to the jurisdiction of the court, because the amount claimed was under one hundred dollars. But there being an allegation in the petition that the note was given in part payment of the purchase-money for land, and a prayer for the foreclosure of the vendor's lien, a question of fact was presented which could legally be decided only by a jury. And that appears to have been almost the only ground of defense relied on.

There were but two witnesses who testified on the trial in relation to that question. One was the agent of plaintiff, who took the note. He testifies that the plaintiff had previously obtained a judgment against the defendant, in which the vendor's lien was secured, and that the note...