Rollison v. Hope

• Court: Texas Supreme Court
• Writing for the Court: WHEELER
• Citation: Rollison v. Hope, 18 Tex. 446 (Tex. 1857)
• Decision Date: 01 January 1857
• Parties: THOMAS ROLLISON v. JOHN HOPE.

18 Tex. 446

THOMAS ROLLISON

v.JOHN HOPE.

Supreme Court of Texas.

1857.

The affidavit to a petition for certiorari may be made before the clerk of the district court in which the petition is to be filed.

An affidavit to a petition for a certiorari to the effect “that the material facts as set forth in the foregoing petition are true as they have come to his own knowledge, and the information of others concerning the facts, which has come to his knowledge, he believes to be true in like manner,” held to be sufficient.

Where the affidavit to a petition for certiorari stated that the material facts as set forth therein were true, it was held sufficient on appeal, especially as the motion to dismiss did not point out specifically the objection now urged (to the word “material”).

Where the petition for certiorari purported to set forth the testimony introduced by each party at the trial in the justice's court, but did not say in so many words that there was no other evidence introduced than that so stated, although it did state that there was no proof to sustain the account sued on it was held sufficient.

A chose in action, not evidenced by writing or an open account, may be assigned without writing, and the assignment will pass the equitable title to the assignee; if the debtor have notice of the assignment, and promise to pay the money to the assignee, the latter may sue therefor in his own name in a court of law; if there is not any such express promise to pay, equity will protect the interest of the assignee, and in our courts he may maintain the action in his own name.

In such case, the action is not brought upon the promise of the second debtor to pay the debt of the first, but upon the assignment of the claim of the first debtor against the second; and the statute of frauds is, therefore, inapplicable.

Error from Colorado. Tried below before the Hon. James H. Bell.

Petition by defendant in error, for a certiorari to a justice's court. The petition was sworn to before the clerk of the district court of Colorado county, was to the effect “that the material facts as set forth in the foregoing petition are true as they have come to his own knowledge; and the information of others concerning the facts, which has come to his knowledge, he believes to be true in like manner.” The petition purported to detail the evidence introduced by each party in the justice's court, but did not say, in so many words, that there was not other testimony. The suit before the justice had been upon an account, and the petition for certiorari alleged that there was no proof to sustain the account. The plaintiff moved to dismiss the certiorari on the ground--

1st. That the clerk of the district court had no authority to take the affidavit to the petition.

2d. That the affidavit is insufficient, and is not such as is required by law in such cases.

3d. That the petition purports to set out certain testimony that was given before the justice, but that for aught that appears, there may have been other testimony adduced, sufficient to warrant the judgment.

The motion to dismiss was overruled. The statement of facts was as follows: The plaintiff, Thomas Rollison, testifies in his own behalf, that in the summer of 1853, one A. J. Shannon became indebted to him, Rollison, in the sum of $240; that said Shannon paid $150 in a note indorsed by defendant Hope to Shannon. and by Shannon to plaintiff; that Shannon told plaintiff that he would get the remainder from Hope in a good note; that Shannon told plaintiff to look for Hope for the ninety dollars, which witness agreed to do; that witness did not know of any business transaction between Hope and Shannon; that he did not know anything of the sale of a buggy from Shannon to Hope; that plaintiff never had sold a buggy to Hope and received any money or other payment from Hope on account of a buggy; that Hope knew nothing of the arrangement between plaintiff and Shannon, and was not privy to the same; did not know that Hope was indebted to Shannon. In obedience to the request of Shannon plaintiff went to Hope and demanded ninety dollars on account of Shannon; Hope offered to plaintiff a horse, if plaintiff would pay the difference; at another time offered a note of about $200, if plaintiff would pay the difference. Afterwards Hope required of plaintiff to bring Shannon in his presence, or to bring a written order from Shannon, neither of which acts did plaintiff perform. Plaintiff said that he never had a written order from Shannon. This occurred in the latter part of 1853, or in the early part of 1854.

John Shannon, defendant's witness, testified that about the 11th of July, 1853, defendant and A. J. Shannon were talking about the sale of a buggy; that Hope was to pay $150, in a note made by D. Cooper to Hope, and Shannon requested Hope to lift a note on which was due about $200, made by Shannon to Bonds, which Hope agreed to do; did not see the buggy; did not know the price of it; nor how much the Bonds note was first given for; that the contract was that Hope was to pay Shannon is his Shannon's own paper, or other good paper satisfactorily indorsed.

Bonds, defendant's witness, testified that Hope, some time in August, 1854, purchased from witness a note, made by A. J. Shannon, on which was due about $200; that Hope gave witness a valuable consideration for said note. The note was shown, and witness recognized it as the note sold to Hope. (Here followed a copy of said note with credits indorsed.)

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

The jury are instructed that, in order to hold a party bound on a promise to pay a pre-existing debt of another person, such promise or agreement, or some memorandum thereof, must be in writing, and signed by the party to be charged therewith, or by some person authorized to sign such agreement in writing, or such memorandum.

The following instructions were requested by the plaintiff, and refused:

That the verbal assignment of a debt is as good as a written one; also, that if Hope, the defendant, purchased the Bonds note, with knowledge that Rollison claimed the debt which he owed Shannon, and after Shannon had assigned the account of ninety dollars to Rollison, then Hope cannot offset the note of Shannon to Bonds against the claim of Rollison.

Verdict and judgment for defendant. Motion for new trial overruled.

J. H. Robson, for plaintiff in error.

W. J. Darden, for defendant in error.

WHEELER, J.

The court did not err in overruling the motion to dismiss the petition.

That the affidavit may be made before the clerk of the court in which the suit is instituted, has been heretofore decided.

The affidavit is not in the most approved form. But a substantial compliance with the law is all that is required; and the law does not prescribe the terms of the affidavit; but only that the party applying shall make affidavit in writing, setting forth sufficient cause to entitle him to the writ. Hart. Dig. art. 1735. The practice has been to construe these proceedings liberally; and not to require the same strictness which is required in the proceedings in ordinary suits in the district court. We think the affidavit ought to be deemed sufficient in substance, especially as the motion did not point out specifically the objection now urged.

The petition was also sufficient. It does not expressly negative that there may have been other...