Mansel v. Castles
| Decision Date | 16 November 1899 |
| Citation | 54 S.W. 299 |
| Parties | MANSEL et al. v. CASTLES.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Action by T. F. Castles against George W. Mansel and others. From an order vacating a judgment for plaintiff, and the entry of a corrected judgment in lieu thereof, defendants bring error. Reversed.
Sam R. Henderson, for plaintiffs in error.
T. F. Castles, as plaintiff, brought suit against George W. Mansel and M. A. Mansel, as defendants, in the district court of Brazos county, January 12, 1898, to recover upon two promissory notes, and to foreclose a vendor's lien on land. The notes sued on were for the sum of $346.85 each. They were dated July 9, 1894, and were due November 1, 1895, and November 1, 1896, respectively, with interest at the rate of 10 per cent. per annum, and 10 per cent. on principal and interest as attorney's fees, if placed in the hands of an attorney for collection. The petition alleged that the notes had been executed for land conveyed by the plaintiff to the defendants on the same day, and referred to an exhibit attached to the petition for a description thereof. It also averred that a deed of trust upon the land had been executed by the defendants to secure the payment of the notes. The exhibit contained what purported to be a description of land by metes and bounds. In the description of one of the tracts there was an omission in the calls for course and distance that rendered it impossible, and no land was described. The defendants were duly served with citation, and on the 8th day of March, 1898, a judgment by default was rendered against them for the amount found to be due on the notes, and 10 per cent, thereon as attorney's fees, together with costs of suit, with a foreclosure of the vendor's lien upon the land as described in the petition and exhibit. After the adjournment of the term of the court at which the judgment was rendered, the plaintiff discovered the mistake in the description of the land, and filed a motion in the case setting up the fact that, in the description of one of the tracts of the land sought to be foreclosed on, one of the calls for course and distance had been omitted, and asked that the defendants be served with notice of the motion, and that the case be reinstated upon the docket. The defendants were duly served by a copy of the motion, and cited to appear at the next ensuing term of the court; and during the term, on October 11, 1898, the court made an order vacating and setting aside the judgment entered at the former term of the court, and on the same day the plaintiff filed an amended petition, containing a correct description of the land, and the court rendered judgment by default against the defendants, as before, for the amount of the notes, principal and interest, with 10...
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Mansel v. Castles
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