Mayhew & Co. v. Harrell
| Decision Date | 13 November 1909 |
| Citation | 122 S.W. 957 |
| Court | Texas Court of Appeals |
| Parties | MAYHEW & CO. v. HARRELL et al. |
J. R. Stubblefield and B. W. Patterson, for plaintiff in error. Scott & Brelsford, for defendant in error.
J. J. Wright and Mattie M. Wright executed their promissory note in favor of Mayhew & Co., a corporation, for $1,000. The payee indorsed and delivered the note to Mrs. J. C. Harrell, who sued the makers and indorsers. Judgment was rendered in favor of the plaintiff against J. J. Wright as principal and Mayhew & Co. as indorser for the amount due on the note; but the court found that Mattie M. Wright was a married woman at the time she executed the note, that no facts existed to render her personally liable thereon, or which would subject her separate property to the payment of the same, and upon such findings judgment was rendered in her favor. By plea over against J. J. Wright and Mattie M. Wright, Mayhew & Co. alleged that it was liable on the note as an indorser only, and prayed that in case of recovery by plaintiff, execution should first issue against the makers of the note, as provided by the statutes, and that Mayhew & Co. should have judgment over against the two makers for any sum it might pay on said judgment. In its answer Mayhew & Co. further alleged that two fire insurance policies on property, since destroyed by fire, had been hypothecated to secure payment of the note sued on, that suits had been instituted by J. J. Wright to collect the policies against the companies issuing them, and upon those allegations Mayhew & Co. prayed that this suit be abated, and that plaintiff Mrs. J. C. Harrell be required to exhaust such security before recovering judgment in this suit. The trial court found that the suits to collect the policies were pending, and adjudged that Mayhew & Co. was subrogated to all the rights of J. J. Wright and Mattie M. Wright in and to those policies and the proceeds thereof. After reciting appearance of plaintiff and defendant Mayhew & Co., the judgment contained the following further recital: "The defendants J. J. Wright and Mattie M. Wright, although duly cited to appear and answer herein, came not but wholly made default."
None of the pleadings of plaintiff or defendant Mayhew & Co. contained any allegation that Mattie M. Wright was a married woman. Mayhew & Co. has prosecuted this writ of error, and by various assignments insists that the trial court erred in failing to render judgment in favor of plaintiff and Mayhew & Co. against Mattie M. Wright, as well as against J. J. Wright. Plaintiff in the suit has not complained of a failure to enter such judgment in her favor. The record fails to show any service of citation...
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