Price v. Luter

• Decision Date: 01 January 1855
• Parties: JACOB PRICE v. E. LUTER.
• Court: Texas Supreme Court

14 Tex. 6

JACOB PRICE

v.E. LUTER.

Supreme Court of Texas.

1855.

The delivery of a note to a justice of the peace with orders to issue process is not the commencement of a suit, and does not stop the running of the statute of limitations.

Appeal from Goliad. The proceedings before the justice were not copied into the transcript, and it did not appear when the suit was instituted, except by a bill of exceptions, which was as follows:

“Plaintiff gave the note in evidence, which was dated January 1, 1850, payable one day after date, and indorsed ‘came into my hands for suit 28th of November, 1853. A. H. Briscoe, mayor of Goliad and J. P. G. C.’ The plaintiff then introduced A. H. Briscoe, who testified that in the year 1853 he was an acting justice of the peace in said county of Goliad, and that on the 28th day of November in said year the plaintiff handed to him the note with instructions to institute suit upon it forthwith, but that in consequence of there being no constable or sheriff in the county he did not issue it, nor was it issued, for the reason above stated, until the 9th day of February, 1854; to the introduction of which evidence for the purpose of removing the bar of the statute of limitations the defendant by his counsel objected, but the court overruled the objection and the evidence was admitted, and the court instructed the jury that the filing of the note with the justice for suit was the commencement of proceedings on his part against the defendant, and suspended the operation of the statute; to all of which,” &c. The petition for a certiorari described the judgment as rendered by J. M. Goffe.

McKenney, for appellant.

F. Faunt LeRoy, for appellee.

LIPSCOMB, J.

This suit was brought before a justice of the peace, and removed by a certiorari to the District Court, and a judgment for the plaintiff, from which the defendant appealed. In the court below the appellee, then plaintiff, to avoid the plea of the statute of limitations, offered proof that he had given the claim to a justice of the peace to issue his summons on in time before the statute had operated as a bar; that suit had not been commenced for the want of an officer to execute process, and that plaintiff then put his claim into the hands of another justice, and the suit was commenced. It is admitted that this suit was commenced after the statute had perfected the bar of limitation.

It was thought by the court below that the circumstances created an exception...