McAlpin v. Finch

• Decision Date: 01 January 1857
• Parties: MALCOM S. MCALPIN v. J. H. FINCH.
• Court: Texas Supreme Court

18 Tex. 831

MALCOM S. MCALPIN

v.J. H. FINCH.

Supreme Court of Texas.

1857.

The affidavit to a petition for certiorari to a justice's court, may be made by the agent or attorney of the petitioner.

A bond for certiorari, to which the name of the party appears to be signed by attorney, whose authority is not shown (but where the bond has been approved by the proper officer), is prima facie the deed of the party and sufficient.

See this case for evidence as to partial failure of consideration of a promissory note, negotiable on its face, which was held not to be sufficient to throw upon the plaintiff the burden of proving that he gave value for the note.

Appeal from Grimes. Tried below before the Hon. Peter W. Gray.

Suit by appellee against appellant, commenced before a justice of the peace on the ____ day of September, 1854, on a promissory note as follows:

+-------------------------------------+
                ¦$100.¦Madison, Texas, May 25th, 1853.¦
                +-------------------------------------+
                

On the first day of January, 1854, I promise to pay to John T. Holt, or order, the sum of one hundred dollars, for value received.

Signed by the defendant, and indorsed to the plaintiff, without date. Judgment, for defendant. Case removed by certiorari to the district court. The petition for certiorari was sworn to by the attorney of the plaintiff, and no cause was stated why it was not made by the party. The bond for certiorari was signed “J. H. Finch, by A. S. Richardson, att'y,” and by two sureties, and was approved by the clerk of the district court. The defendant moved to dismiss the certiorari on the ground,

1st. That the affidavit to the petition was not made by the party but by his attorney.

2d. That the bond was not executed by the party, but by his attorney, and no authority shown.

Motion to dismiss overruled.

The evidence was as follows: note and indorsement read by plaintiff.

B. C. Franklin, for defendant, testified that he was employed by the defendant as attorney to assist in a suit filed in the district court, in Orange county, by the defendant, to obtain a divorce. The suit was filed by John T. Holt for McAlpin. Malcom McAlpin gave his note to witness for one hundred dollars, which he subsequently paid. Holt and witness were the only attorneys employed in the case for plaintiff. Holt filed the petition for the plaintiff; he was present at the fall term, 1853, and assisted in the suit; he was not present at the spring term, 1854, when the case was tried, and rendered no services on the trial of the case. Was present at the fall term, 1853, when an interlocutory order was made for the payment of alimony, on motion of counsel for defendant in the suit for divorce; witness argued the motion in behalf of the plaintiff. Witness does not know that John T. Holt was ever employed by McAlpin in any other case than the case for divorce. That was the only case on the docket in which McAlpin was a party. My recollection is, that Holt had charged a fee of twenty-five dollars when he brought the suit. Whether McAlpin gave him a note for the twenty-five dollars I do not know; subsequently, and after I had been employed, and after a conversation between Holt and witness in relation to the case and the fee I had charged McAlpin, McAlpin and Holt made another or further agreement about Holt's fee. I think that McAlpin gave his note to Holt for one hundred dollars, though I have no recollection of having seen the note, which was given for the professional services of Mr. Holt in the suit for divorce.

Richardson, attorney for plaintiff, called by defendant, testified that the defendant said at the trial in the justice's court that he had given a note for twenty-five dollars and one for one hundred dollars, the one sued on, to Holt, for his professional services to be rendered in his suit for divorce, and that he said he was willing to pay the twenty-five dollar note whenever it was presented; that he had not paid either of the notes, but was willing to pay the twenty-five dollar note; that note was not presented to him.

The judge charged the jury, without request, as follows:

When a negotiable note is transferred to a third party, the law presumes it was done before due and for value; a third party, holder of a note, transferred before due for value, takes it free from all defenses between the original parties; and the burden of proof does not fall on the plaintiff until it is shown...