Field v. Gantier

• Decision Date: 01 January 1852
• Citation: 8 Tex. 74
• Parties: FIELD, USE, &C., v. GANTIER AND OTHERS.
• Court: Texas Supreme Court

8 Tex. 74

FIELD, USE, &C.,

v.GANTIER AND OTHERS.

Supreme Court of Texas.

1852.

The act of June 28th, 1845, (Hart. Dig., p. 502,) had reference to suits on foreign judgments and did not apply to a suit brought by a foreign corporation not on a foreign judgment.

Where an intervenor alleged that the notes sued on had been by him placed in the hands of an agent for collection; that the agent and another, intending to defraud the intervenor, delivered them to the plaintiff, who, knowing them to belong to the intervenor, brought the suit upon them against the makers; and that the notes were the property of the intervenor, and were never indorsed or transferred by him to any one: Held, That the intervenor had a right to intervene and claim the benefit of the original suit to the exclusion of the bar of the statute of limitations, and that the nominal plaintiffs in that suit could not defeat his right after the filing of the petition and notice to them by dismissing the suit. All the par ties to the transaction were made parties to the petition of intervention.

Appeal from Brazoria. The appellant brought suit against the appellees by filing his petition in the District Court of Brazoria county on the 21st day of April, 1848. The petition alleged that the Gantiers were indebted to the plaintiff on two promissory notes made by them, payable to the plaintiff, “cashier of the Southern Life Insurance and Trust Company,” due on the first days of February and March, 1840; that the defendant Corley, as an attorney at law, obtained the notes from the plaintiff for collection in 1843, and undertook and promised to collect them of the makers; that he and the defendant Milton, intending to defraud the plaintiff, delivered them to the defendant McLeod, who, knowing them to belong to the plaintiff, brought suit upon them against the makers in his own name, to the use of the defendant Milton, in the District Court of Brazoria county, where the suits are still pending; that the notes are the property of the plaintiff, and that he has never indorsed or transferred them to the said McLeod or Milton, or to any other person; and the plaintiff prays to be permitted to intervene and to prosecute the suits so commenced to final judgment for his own benefit.

On the 4th day of October, 1848, the plaintiff filed an amended petition, alleging that McLeod and Milton, pretending to have compromised with the Gantiers the suits by them instituted against the latter, and with full knowledge of the rights of the plaintiff, had dismissed the suits; and praying that the pretended compromise be annulled, that the suits be reinstated, and that he have judgement, &c.

The defendants pleaded in abatement that the party plaintiff was a foreign banking and money corporation, and that neither the act of incorporation nor a copy thereof, authenticated as required by law, was filed with the petition, & c., nor were the costs likely to accrue in said suit with the tax fee therein paid as directed by law.

The plaintiff excepted to the legal sufficiency of the plea. When the case was called for trial the court overruled the plaintiff's exceptions to the plea and dismissed the case, and the plaintiff appealed.

J. B. Jones, for appellants.

Harris and Pease, for appellees.

I. The plea of the defendant was filed under the provisions of the 5th section of an act of the Congress of the Republic of Texas, passed 28th June, 1845. (Acts of 2d session of 9th Congress, pages 21, 22, and Hart. Dig., art. 1629.)

By a comparison of the act as published in Hartley's Digest with the act published in the pamphlet edition of the laws it will be seen that it is not printed the same way in both. In the pamphlet edition of the laws printed by authority of the Secretary of State the section reads, “That in all suits or judgments by foreign banking or money corporations,” &c. In Hartley the section r...