Frank v. Kaigler
| Decision Date | 01 January 1871 |
| Citation | 36 Tex. 305 |
| Parties | A. FRANK, ADM'R. v. J. R. KAIGLER. |
| Court | Texas Supreme Court |
1. A party who sues in the name of another when he might sue in his own name may amend and proceed in his own name.
2. An indorsement of part of a note is ineffectual to transfer the title to the note, or to invest the indorsee with a right of action upon it in his own name.
3. On a note for five hundred dollars, the payee indorsed “pay to L. four hundred dollars out of this note.” Suit being brought by a subsequent
indorsee in his own name, alleging that he was the legal and equitable owner, but exhibiting the note and indorsements as part of his petition, the maker and defendant demurred. Held, that the demurrer was properly sustained.
APPEAL from De Witt. Tried below before the Hon. Henry Maney.
The opinion of the court and the head-notes state the material facts. The entire indorsement was but the note, being overdue, was treated as a money demand.
Everett Lewis, for the appellant.
Miller & Sayers, for the appellee.
This suit is brought upon an instrument in writing in these words:
“On demand I promise to pay W. G. Kelley or order the sum of five hundred and twenty-five dollars in horse property, for value received, January 7th, 1861.
JAMES R. KAIGLER.”
The petition alleges that four hundred dollars of this note were transferred by the payee to A. P. Luckett, by him to B. H. Luckett, and by B. H. Luckett to plaintiff's intestate. By an amended petition plaintiff alleged that he was the legal owner and holder of the obligation sued on.
To the petition and amended petition defendant filed a general demurrer and a plea of general denial. Upon the trial the demurrer was sustained by the court, and judgment rendered dismissing the case from the docket, and against plaintiff for costs.
Plaintiff moved for a new trial, which was refused; and he gave notice of appeal, and assigns as one cause of error the sustaining of the demurrer. A party who sues in the name of another for his own use, when he might have sued in his own name, may amend and proceed in his own name. (Heard v. Lockett, 20 Texas, 162;Barnett v. Logue's Adm'rs, 29 Texas, 282.) Although the bearer or indorsee of a note has the legal title to it, he may maintain a suit in his own name; yet if he holds it without consideration and in trust for the payees, the maker is entitled...
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Fourth Nat'l Bank of St. Louis v. Noonan
...partial assignee to maintain an action on the same against the maker. Edwards on B. & N., 279; 1 Daniel on Neg. Paper, sec. 668; Frank v. Kaigler, 36 Tex. 305. (3) The attempted assignment was simply void as against the maker, and conferred no rights on the partial assignee as against him. ......
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Slay v. Wheeler, 1475.
...appellees cite as authority for their contention, section 32, of article 5934, R. S. 1925 (Uniform Negotiable Instruments Law); Frank v. Kaigler, 36 Tex. 305; Lindsay v. Price, 33 Tex. 280; Adams v. Kelly (Tex. Civ. App.) 196 S. W. 576. Section 32 is as follows: "The indorsement must be an ......
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Campbell v. Hildebrandt
...fixed. The equitable rule applies that the first in time is the first in right. The cases of Lindsay v. Price, 33 Tex. 280, and Frank v. Kaigler, 36 Tex. 305, have been considered in determining the questions we have had before us, and we have not found the points there decided in conflict ......
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Sizemore v. Dill
...by the court, it ought to be verified, and merit, good faith, and diligence must always clearly appear." And in the case of Frank v. Kaigler, 36 Tex. 305, we this language: "A party who sues in the name of another when he might sue in his own name may amend and proceed in his own name." And......