Foote v. O'Roork
Decision Date | 10 April 1883 |
Docket Number | Case No. 3586. |
Parties | G. A. FOOTE v. S. C. O'ROORK ET AL. |
Court | Texas Supreme Court |
APPEAL from Collin. Tried below before the Hon. Joseph Bledsoe.
Simon C. O'Roork and others brought this suit against G. A. Foote on March 25, 1874, to recover the amount claimed to be due on a promissory note, dated June 25, 1860, for $135, due the 5th day of June, 1861, signed by appellant and Wm. H. Perkins and another, and payable to James F. Fisher as administrator of the estate of John J. Miller, deceased. They claimed that the administration on Miller's estate had been virtually closed by the removal of the administrator several years before the suit was brought; that they were the heirs of Miller, and that the note was given for land purchased at a sale made by Fisher as such administrator, by appellant Foote.
In 1875 one Mays intervened, claiming to be the owner of an interest in the note by purchase from some of the heirs of J. J. Miller; he set up a mortgage given by Foote upon the land, to secure the note, and asked a foreclosure of the same.
Sarah C. Moore, joined by her husband, Samuel Moore, intervened June 21, 1877, claiming an interest in the note as one of the heirs of Miller, and asked to prosecute the suit with the other plaintiffs. The plaintiffs and intervenors thereafter seem to have prosecuted the suit together.
Appellant, among other defenses, pleaded limitation both as to the note and mortgage, and especially as to the intervenors. The other parties prayed for a judgment for the amount of the note and foreclosure of the mortgage, and in the alternative a judgment for the land.
The case was tried without a jury July 24, 1877, and judgment rendered for the amount of the note against Foote, and the mortgage was foreclosed upon the land.
The errors assigned related to the question of limitation.Throckmorton, Brown & Bro., for appellant, cited on limitation, Koschwitz v. Healy, 36 Tex., 667.
No briefs on file for appellees.
Limitation did not commence to run against the note, upon which this suit is founded, until March 31, 1870, and as the suit was commenced by the plaintiffs before the expiration of four years from that time, it is very clear that they are not barred. But the intervenors came into the case after the expiration of four years from March 31, 1870, and it is claimed that as to them the note is barred. It would seem that the suit by the plaintiffs would inure to the benefit of...
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Anderson v. Ferguson
...statute of limitations is not available as a defense to the petition of such intervener. (Field v. Gantier et al., 8 Tex. 74; Foote v. O'Roork et al., 59 Tex. 215; v. Wagnespack (Becnel, Intervener), 40 La. Ann. 109, 3 So. 536.) R. B. Scatterday and Stewart S. Maxey, for Respondent Anderson......
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Bryan v. Ross
...prosecute in his own name the suit which up to that time had been proceeding for his benefit in the name of Deck Martin. Foote v. O'Roork, 59 Tex. 215; Field v. Gantier, 8 Tex. 74. There is a distinction between this case and the cases referred to by appellant, in which it was held that a s......
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Yeary v. Hinojosa, 13140
...asserted by the original plaintiff, and hence the statute of limitations was tolled by the filing of the original suit. Foote v. O'Roork, 59 Tex. 215.' See also Hartford Accident & Indemnity Co. v. Weeks Drug Store, Tex.Civ.App., 161 S.W.2d 153, error refused, w. o. m; American Indemnity Co......
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