Elliott v. Wiggins
| Citation | 16 Tex. 596 |
| Parties | JAMES S. ELLIOTT AND OTHERS v. DAVID WIGGINS. |
| Decision Date | 01 January 1856 |
| Court | Supreme Court of Texas |
OPINION TEXT STARTS HERE
Where the parties to a promissory note, made in this state, were not alleged to be merchants, and it appeared by reference to the maturity of the note, and the time prescribed by law for holding court in the county where the note was made (not being payable elsewhere) and the defendants resided, that the suit was commenced to the second term of the court after the maturity of the note, and there was no cause alleged in the petition why the suit was not commenced to the first term, and the maker was joined as a defendant, and judgment went by default, on error the judgment was reversed as to the indorsees and affirmed as to the maker. [21 Tex. 680;30 Tex. 17, 232.]
Error from Cass. Heard before the Hon. W. W. Morris.
The note was dated at Jefferson, Texas, July 27, 1854, due one day after date. The suit was commenced February 15, 1855. The petition alleged that all the defendants resided in Cass county when suit was commenced. The other facts appear in the opinion.
T. J. & J. H. Rogers, for plaintiffs in error.
S. F. Moseley, for defendant in error, suggested delay.
This suit was brought to recover the amount of a promissory note, executed by Elliott and one Hubert, payable to Thomas McAllenney or order, indorsed by McAllenney to Eason, who indorsed it to Gogue, who indorsed it to one Moseley, by whom it was indorsed to Wiggins, the defendant in error. The suit was brought under the statute against Elliott, one of the makers, and it is alleged in the petition that the residence of the other joint and several maker “ is not known,” and against the indorsers above named, with the exception of Moseley, the last indorser, who was not sued. The suit was not brought to the first term of the court after the maturity of the note; and no reason at all is alleged why one term was allowed to be passed without the commencement of the suit. All of the defendants sued were brought into court by service of process. McAllenney, who was the first indorser, excepted to the sufficiency of the petition, on the ground that one term was passed, after note fell due, before suit, and no reason alleged why it was so permitted by the plaintiff to pass without suit; whereupon the plaintiff discontinued the suit as to him, and took judgment by default against the maker and the other indorsers sued.
As the statute under which the suit was brought is designed to...
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McCamant v. McCamant
...one of the exceptions which relieved the holder of the note from bringing such suit existed. Fisher v. Phelps. 21 Tex. 555; Elliott v. Wiggins, 16 Tex. 596." Article 579, supra, applies to negotiable instruments indorsed after maturity, as well as those indorsed before maturity. Caldwell v.......
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...unless one of the exceptions which relieve the holder of the note from bringing such suit existed." Fisher v. Phelps, 21 Tex. 55; Elliott v. Wiggin, 16 Tex. 596. Judge Brown, in speaking for the Supreme Court in Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015, "A general demurrer has the effect ......
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Woods-Taylor & Co. v. Smith
...barred by the four years' statute of limitation, and neither suit nor protest is required to fix the liability of such party. Elliott v. Wiggins, 16 Tex. 596; Wood v. McMeans, 23 Tex. 481; Thatcher v. Mills, 14 Tex. 14, 65 Am. Dec. 95; Beissner v. Weekes, 21 Tex. Civ. App. 14, 50 S. W. 138;......
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Ettl v. Rowe
...barred by the four years' statute of limitation, and neither suit nor protest is required to fix the liability of such party. Elliott v. Wiggins, 16 Tex. 596; Wood v. McMeans, 23 Tex. 481; Thatcher v. Mills, 14 Tex . (13) 14, 65 Am.Dec. 95; Beissner v. Weekes, 21 Tex.Civ.App. 14, 50 S.W. 13......