Griffin v. Chubb

• Decision Date: 01 January 1856
• Citation: 16 Tex. 219
• Parties: JACKSON H. GRIFFIN v. THOMAS CHUBB AND ANOTHER.
• Court: Texas Supreme Court

16 Tex. 219

JACKSON H. GRIFFIN

v.THOMAS CHUBB AND ANOTHER.

Supreme Court of Texas.

1856.

That the plaintiff had no cause of action was no reason to refuse to give judgment in favor of the defendant, upon the admitted cause of action, set up in his answer in reconvention.

It is immaterial that the note which the defendant pleaded in reconvention against the plaintiff was not due at the time of instituting suit by the latter; it was overdue when the answer was filed.

Where the indorsee of a promissory note was made a defendant to a suit by the indorser against the maker, to sequestrate certain property which was mortgaged to secure the payment of the note, and the suit was commenced before the note was due, and the indorsee answered at the second term of the court, praying judgment against both maker and indorser, for the amount of the note; and the indorser demurred, on the ground that the indorsee had not sued him to the first term of court, or, etc., this court said: It is the maker and not the indorser who is to be sued to the first or second term of the court, in order to fix the liability of the latter. Besides, both the holder and maker of the note were brought into court by the plaintiff before the first term of the court. There was no necessity for another suit when all the parties were before the court.

Appeal from Galveston. Tried before the Hon. Nelson H. Munger.

Suit commenced July 21, 1849, by Thomas Chubb, the appellee, alleging a sale of certain property by him to Owen D. Johnson, on the 26th day of April, 1849, for which said Johnson gave him his two promissory notes, one at three and the other at six months, with a deed of trust to secure their payment; that plaintiff subsequently indorsed the first note, for a valuable consideration, to L. W. Dake, of the county of Galveston, and the other, also for a valuable consideration, to Jackson H. Griffin, of Liberty county; that although the time for payment of said notes had not elapsed, yet the said Johnson, fraudulently intending and contriving to injure and defraud the plaintiff and to defeat the collection of said notes, had fraudulently removed said property from the county of Liberty, with the intention of selling and disposing of the same to the great injury of the plaintiff, and so as to defeat the collection of said notes; allegation that Johnson was insolvent, etc. Prayer that Johnson, Dake, Griffin, and the trustees be cited as defendants, and that a writ of sequestration issue, etc. Sequestration issued; property replevied; acknowledgment of service by Griffin, August 10, 1849. Other defendants cited or service acknowledged. June 13, 1850, Griffin filed his answer, which contained the usual averments of a petition in a suit on a promissory note, and prayed that in so much as the several parties were before the court, and the note indorsed to him remained unpaid, he have judgment for his debt, against the said Johnson as maker, and the said Chubb as indorser, and such other and further relief, etc.

Johnson filed a general denial of the...