Hinzie v. Kempner

• Decision Date: 22 December 1891
• Parties: HINZIE v. KEMPNER.
• Court: Texas Supreme Court

18 S.W. 659

HINZIE v. KEMPNER.

Supreme Court of Texas.

December 22, 1891.

Commissioners' decision. Section A. Appeal from district court, Anderson county; F. A. WILLIAMS, Judge.

Gaminage & Gaminage, for appellant. J. R. Burnett, for appellee.

MARR, J.

Harris Kempner, as plaintiff, on the 10th day of November, 1890, instituted, by petition filed in the district court of Anderson county, Tex., suit against appellant, Martin Hinzie, on his promissory notes, attached to petition as Exhibits A, B, and C, — one for $4,000, and 10 per cent. attorney's fees, dated February 5, 1889, due November 1, 1889; one for $1,500, dated April 22, 1889, due November 1, 1889, and 10 per cent. attorney's fees; one dated August 3, 1889, for $906.67, and attorney's fees, 10 per cent., due 60 days. Also, on mortgage dated October 28, 1889, to secure payment of above amounts of money, on 21 several town lots and tracts of land, all situate in Anderson county, Tex., attached to petition as Exhibit D. Defendant filed motion to quash citation. This motion was submitted to and overruled by the court. Defendant filed amended original answer, admitting indebtedness as alleged and mortgage, but alleging that mortgage was made on only a one-half undivided interest in the several tracts of land described, and that the lands were the community property of his deceased wife and himself; and that his children by his deceased wife, Herbert M. and others, minors, owned the other half; that said contract was made by him with J. R. Burnett, agent for plaintiff, and said claim and interest of said children was expressed and set out in the mortgage; that the debts sued for were his separate debts; and he, as father and natural guardian of said children, prayed the court that their interest be protected, etc. Herbert M. Hinzie, for himself and as next friend for his minor brothers and sisters, the children of Martin Hinzie and Susan Ann Hinzie, their deceased mother, intervened, setting up their ownership as heirs at law of their mother's one-half undivided interest in the lands described in the mortgage, and prayed that the court do not permit their title to be affected, and they forced to individual suits, etc. Plaintiff filed a motion to strike out his plea, which was sustained by the court. On trial of cause the mortgage was foreclosed, as against all and severally the tracts of land named in the mortgage. "The lands were ordered to be sold, and the officer executing the order of sale was therein ordered to put the purchaser or purchasers in possession thereof, within thirty days after sale." The exception of plaintiff to defendant's answer, so far as it set up any right of the children named to the mortgaged property, was sustained, to which ruling defendant excepted. On May 1, 1891, defendant filed motion to correct judgment on ground of fraud and mistake in foreclosing on north half of 100-acre tract, while the mortgage was on the south half. Defendant filed, on May 8, 1891, answer to motion. On May 9, 1891, motion was tried and overruled, to which ruling defendant excepted, and gave notice of appeal. Statement of facts, filed May 20, 1891: "Judgment in original and main suit was rendered November 28, 1890, to which defendant excepted, and gave notice of appeal. Appeal-bond No. 1 filed December 29, 1890. Appeal-bond No. 2 filed May 26, 1891. November term, 1890, adjourned December 19, 1890. April term, 1891, adjourned May 21, 1891. Defendant assigned errors in main case, and, on motion, the original suit and the proceedings on the motion are both brought up in same transcript."

The first error assigned is that "the court erred in overruling defendant's motion, filed November 20, 1890, excepting, and to quash citation, alleging that citation does not contain a statement of plaintiff's demand, in that it does not state who are the owners or holders of the notes sued on, nor whether same are due and payable to bearer or order, nor the rate of interest each bears, nor what or how much attorney's fees, nor that plaintiff prays for a moneyed judgment, or how much. It [the citation] does not state in what county the land [sought to be foreclosed against] is situated, nor in what one of all the states of the Union the same is situated." The citation does state the amount of the notes and their dates, as well as that of the trust-deed, and that the latter includes "twenty-one (21) tracts of land, described in plaintiff's petition." The citation in this case recites: "The nature of plaintiff's demand, being a suit on three promissory notes executed and delivered by defendant to plaintiff, as follows: One for $4,000, dated February 5, 1889, payable November 1, 1889; one for $1,500, dated April 22, 1889; and one for $906.67, dated August 3, 1889, and which notes are filed with plaintiff's petition. Plaintiff sues for amount of said notes and interest, and attorney's fees, as therein specified, less credits on first note of $886.80, paid March 6, 1890. Plaintiff also sues on a trust-deed executed by defendant on October 24, 1889, to J. R. Burnett, trustee, of 21 lots or parcels of land, described in the petition, to secure the payment of said notes, and plaintiff prays for a foreclosure of said trust-deed." Evidently the statement that "the notes were executed and delivered by defendant to plaintiff" shows the legal right of the latter to sue upon the same. While the writ of citation is somewhat indefinite in some of the particulars complained of, still we are not prepared to hold that it will not pass muster as sufficiently indicating "the nature of plaintiff's demand." Rev. St. art. 1215. The law does not require the citation to state the cause of action with anything like the same particularity as the petition. It may give a correct description of the demand "in general terms," without going into details. To require this to be done in the writ would render it inconvenient and cumbersome, and defeat the purpose of the change in the law, as made in the Revised Statutes, which dispensed with the service upon the defendant of a certified copy of the petition. Vide Railway v. Burke, 55 Tex. 329; Pipkin v. Kaufman, 62 Tex. 545.

It remains now to determine the two other questions presented by the assignments of error. It is contended by appellant's counsel that the court erred in sustaining exceptions, and in striking out the plea of intervention interposed by Herbert M. Hinzie for himself, and as next friend of the other children of the defendant, ...