Fisk v. Warren

• Decision Date: 08 February 1923
• Docket Number: (No. 1413.)
• Parties: FISK et ux. v. WARREN.
• Court: Texas Court of Appeals

248 S.W. 406

FISK et ux. v. WARREN.

(No. 1413.)

Court of Civil Appeals of Texas. El Paso.

February 8, 1923.

Error from District Court, Brewster County; Jos. Jones, Judge.

Action by Mrs. A. E. Warren against N. B. Fisk and wife. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Brion Montague, of Alpine, for plaintiffs in error.

W. Van Sickle, of Alpine, for defendant in error.

WALTHALL, J.

N. B. Fisk and wife, Mrs. Mary Fisk, plaintiffs in error, prosecute this appeal from a default judgment rendered against them and in favor of Mrs. A. E. Warren, defendant in error.

In view of the propositions presented, we think it well to set out the petition upon which the judgment was rendered. After the formal parts, in which it is alleged that Mrs. Warren is a feme sole and that "N. B. Fisk and his wife, Mrs. Mary Fisk, reside in Brewster county," the petition recites:

"That heretofore, to wit, on or about the 1st day of October, A. D. 1918, the defendant Mrs. Mary Fisk, wife of the said N. B. Fisk, made, executed and delivered to this plaintiff her four certain promissory notes, each in the principal sum of $200, dated at Alpine, Tex., October 1, 1918, bearing interest at the rate of 8 per cent. per annum from date until maturity and thereafter 10 per cent. per annum until paid, and providing for the usual attorney's fees of 10 per cent. for collection if suit is brought on same, or if placed in the hands of an attorney for collection; numbered from 2 to 5, respectively, note No. 2 maturing October 1, 1919, No. 3, October 1, 1920, No. 3, October 1, 1921, and note No. 4, October 1, 1922, and note No. 5, October 1, 1923, all of said notes comprising a series failure to pay any one of which, or any installment of interest thereon, when due, at the option of the legal owner and holder thereof to mature the whole of the unpaid balance of same. That said notes were given for a part of the purchase price or money of the following described real estate and premises, situated in the town of Alpine, in Brewster county, Tex., to wit, lots 3 and the south one-half of 4, in block W-1, of the Walton addition to the town of Alpine, Brewster county, Tex.

"That said property was heretofore conveyed, to wit, on October 1, 1918, to defendant Mrs. Mary Fisk, by this plaintiff by her deed of writing of that date, in consideration, among other things, of the four notes herein described, and that in said deed of conveyance a lien was reserved on the above-described property to secure the payment of said notes; and that each of said notes are due and unpaid, and that the defendants, though often requested, have failed and refused to pay the same or any part, each or either of them, but the same remains still due and unpaid.

"That the said notes have been placed in the hands of W. Van Sickle, an attorney, for collection, and plaintiff has contracted to pay him the 10 per cent. attorney's fees stipulated therein; the same being the usual and customary fee and reasonable.

"Wherefore plaintiff prays the court that defendants be cited to appear and answer this petition, that she have judgment for her debt, interest, attorney's fees and costs of suit, and for the foreclosure of her lien on the above-described land and premises, and the same be decreed to be sold, according to law; and that the sheriff or other officer executing this writ and order of sale, shall place the purchaser of said property sold under said order of sale in possession thereof, within 30 days after the day of sale, and for such other and further relief, special and general, in law and in equity, as she may show herself entitled to, and she will ever pray"—and signed by her attorney.

The citation found in the record appears to have been duly issued and served upon N. B. Fisk and Mrs. Mary Fisk and follows substantially the statement of the cause of action as found in the petition. The notes found in the record are four of a series of five notes, each the same in verbiage except as to the date of payment and note number, and each signed by each of the plaintiffs in error,...