Shelby v. Perrin
| Decision Date | 01 January 1857 |
| Citation | 18 Tex. 515 |
| Parties | JOHN O. AND REBECCA S. SHELBY v. RHODA W. PERRIN. |
| Court | Texas Supreme Court |
See this case for what is said as to making the wife a party defendant in a suit, on the joint contract of the husband and wife.
Where the wife is a necessary or proper party defendant to a suit, the citation must be served on her personally, and not by delivery to her husband.
Where the husband and wife are defendants to a suit, and the wife has not been cited, an answer for “defendants” and general representation of “defendants” throughout the proceedings, by counsel, will not preclude the wife from raising the objection, on error, that the citation was not served upon her.
As this case will be remanded, it may be proper to remark, that if there be a valid mortgage on the lots, for the purchase money, as appears to be, possibly, the case, the plaintiff should plead this by proper averments, and pray for its foreclosure; as the implied lien of the vendor, which was set up in the petition, and upon which the judgment of sale was rendered, cannot be held to exist where the vendees have given to the vendor a mortgage on the premises for the purchase money; provided the mortgage be valid and binding in law.
Error from Polk. Tried below before the Hon. Peter W. Gray.
Suit by appellee against appellants, John O. Shelby and his wife, Rebecca S. Shelby, on their joint promissory note. It was alleged in the petition, “that the consideration of the note was a sale and conveyance made by plaintiff to defendants, or one of them, of certain tracts or parcels of land situated in Polk county, and which plaintiffs conveyed to defendants and put them in possession of, on the ____ day of ____, 1853, to-wit: lots numbered three and four, in block numbered thirty-three, of the town of Livingston, which lots defendants now reside upon.” Prayer for judgment, and sale of the lots and improvements, etc.
Citations issued for both defendants, and both returned served on John O. Shelby. Answer: “And now come the said defendants and for answer,” etc., demurrer. Also: “Defendants deny all and singular,” etc. Signed, “Wilson for defendants.”
Here the transcript contained a mortgage of the two lots from Shelby and wife to plaintiff, to secure the note sued on. It was copied without any introduction or connection.
The entry of judgment read: This cause coming on to be heard, the parties announce themselves ready for trial and waive a jury, etc. Judgment for plaintiff and order of sale of the lots. “And thereupon defendants give notice of appeal.”“Motion by defendants for new trial” on the ground that the judge erred in giving judgment against defendants on the proof adduced; in foreclosing the equitable lien set up in plaintiff's petition, against defendants, when it was shown that there was a mortgage subsisting on said premises in favor of plaintiffs for the...
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Wilson v. Newton County
...the proceedings, and, such being true, the notice must have been served upon her personally, and not by delivery to her husband. Shelby v. Perrin, 18 Tex. 515. The judgment condemning the land is void for the further (a) There is a fatal variance between the description of the land sought t......