Roller v. Holly

• Decision Date: 06 May 1896
• Citation: 35 S.W. 1074
• Parties: ROLLER v. HOLLY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 1074

35 S.W. 1074

ROLLER v. HOLLY et al.¹

Court of Civil Appeals of Texas.

May 6, 1896.

Appeal from district court, Limestone county; Rufus Hardy, Judge.

Action by J. E. Roller against Stephen Holly and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Thos. J. Gibson, for appellant. Cobb & Jackson and Farrar, Williams & Farrar, for appellees.

FLY, J.

This suit was instituted by appellant to recover a judgment against Stephen Holly and William Holly on five promissory notes, each for $228, and to foreclose a vendor's lien on 114 acres of land. Joseph Peeples, H. W. Williams, and W. T. Jackson, appellees, were made parties defendant, under an allegation that they were asserting an interest in the land, and a foreclosure of the vendor's lien was prayed for against them. Stephen and William Holly did not answer, but the other appellees filed an answer, alleging that appellant purchased the land from John W. and Cora E. Jordan, giving in part payment his note for $216.17, and that a vendor's lien was reserved to secure said note; that, before the maturity of said note, McClintic and Procter became the purchasers thereof, and in 1890 instituted suit in the district court of Limestone county for a balance due on said note, and asked for a foreclosure of the vendor's lien on said land, and recovered judgment as prayed for in the sum of $276.65, with a foreclosure of the vendor's lien; that an order of sale was issued under said judgment, and the land in question was legally sold to H. W. Williams, and a deed made by the sheriff to him, although it was bought for the joint benefit of said H. W. Williams and W. T. Jackson, and each paid one-half the purchase money; and that afterwards the land was sold by said parties to Joe Peeples. Appellant filed a supplemental petition, alleging that, at the time of the institution of the suit by McClintic & Procter, he was, and has ever since been, a citizen of the state of Virginia, and was not then, nor has ever been, a citizen of the state of Texas, and that the judgment of McClintic & Procter against him was null and void, because the district court of Limestone county had no jurisdiction over him or his property; that service was obtained on him in Virginia, and the time given for him to appear and answer was not sufficient, and the same was not reasonable notice. The cause was tried by the court, and judgment by default was rendered against Stephen and William Holly for the amount of the notes, and in favor of the other appellees.

We adopt the following conclusions of fact: (1) That plaintiff, John E. Roller, purchased the land described in petition from John W. Jordan and wife on January 3, 1887, and gave as part payment therefor his note for $216.17, bearing 10 per cent. interest from date, due November 1, 1890, which note and deed from said Jordan and wife to Roller specially retained the vendor's lien to secure said note and interest. (2) That McClintic & Procter became the purchasers of said note before maturity, and after it matured, on the 24th of December, 1890, brought suit in this court, to recover of plaintiff the amount due on said note, and to foreclose said vendor's lien. (3) That at the date of the institution of said suit, and ever since, the plaintiff was a nonresident of Texas, and a citizen of Virginia, and has continually resided in that state all of his life. (4) That the plaintiff, John E. Roller, was served by having delivered to him in person a certified copy of the citation or notice of said suit, and with a certified copy of plaintiff's petition, such as is required by the statute of service on nonresidents; and this notice and petition were served on plaintiff in Harrisonburg, Rockingham county, state of Virginia, on December 30, 1890, notifying him to appear on January 5, 1891, being the first day of the January term of court, 1891. On January 9, 1891, the plaintiff failing to appear and answer in said suit, a judgment by default was entered against appellant for the sum of $276.05, and declaring a foreclosure of the vendor's lien on the land described in the...