Mullaly v. Ivory

• Decision Date: 27 February 1895
• Citation: 30 S.W. 259
• Parties: MULLALY v. IVORY.
• Court: Texas Court of Appeals

30 S.W. 259

MULLALY v. IVORY.

Court of Civil Appeals of Texas.

February 27, 1895.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by Holmes Ivory against C. B. Mullaly to recover on two vendor's lien notes. From a judgment for plaintiff, defendant appeals. Reversed, with leave to plaintiff to amend his petition.

R. F. Blair, for appellant. H. P. Drought and Redford Sharpe, for appellee.

JAMES, C. J.

The suit was filed on March 20, 1894, against appellant and others, on two negotiable vendor's lien notes that had been executed by Thomas Fitzgerald to C. B. Mullaly and T. W. Mullaly, for $4,250 each, dated March 24, 1890, one maturing on March 24, 1892, and the other March 24, 1893, which notes had been indorsed by C. B. and T. W. Mullaly, and had become the property of appellee. The maker of the note, Fitzgerald, and one of the indorsers, T. W. Mullaly, were not sued, the petition alleging that they were now (at the time of filing suit) residing out of the state of Texas, and no service could be had on them. This allegation was sufficient to enable the suit to be brought against the indorser C. B. Mullaly under article 1208, Rev. St., and was doubtless made for that purpose. But something more was necessary to state a cause of action against the indorser, where the petition disclosed that the suit was not brought until after more than two terms of court had expired after the right to sue upon the note accrued, and no protest was alleged. The petition does no more than state that at the time of instituting this suit the maker of the note was a nonresident, and could not be served with process. It does not state that this was the case at a time when it would have been an excuse for not suing him at the first term after the notes matured, respectively. That the petition fails to state a cause of action, and is insufficient to support a judgment against him, has been frequently held in this state. Elliott v. Wiggins, 16 Tex. 597; Fisher v. Phelps, 21 Tex. 555; Kampmann v. Williams, 70 Tex. 571, 8 S. W. 310; Yale v. Ward, 30 Tex. 21.

The court found as one of its conclusions of fact that Fitzgerald and T. W. Mullaly had been nonresidents of Texas since May, 1892. The statement of facts shows that the proof upon which the finding was founded consisted of the testimony that "they were nonresidents, and had been for a long time"; and, as to Fitzgerald, the court may have taken into consideration, in connection with this testimony, the recital in the deed from T. W. and C. B. Mullaly to Fitzgerald, dated March 24, 1890, which describes him as being of Arapahoe county, Colo., and in a deed from Fitzgerald to certain of the defendants, dated December 18, 1891, which has a similar recital. This conclusion of fact as to Fitzgerald may have been authorized. Assuming that it was, and...