Shipman v. Allee

• Decision Date: 31 January 1867
• Citation: 29 Tex. 17
• Parties: DANIEL SHIPMAN ET AL. v. ALFRED ALLEE.
• Court: Texas Supreme Court

29 Tex. 17

DANIEL SHIPMAN ET AL.

v.ALFRED ALLEE.

Supreme Court of Texas.

January, 1867.

Where the suit was on a joint note against two makers and indorser, and one of the makers, without being served with process, plead in abatement that she was a married woman, whereupon the plaintiff discontinued as to such defendant: Held, that such discontinuance was not error. Pas. Dig. arts. 1426, 1449, notes 535, 554.

If the indorser objected to the discontinuance as to the defendant who plead in abatement, he should have done so in the court below; and he cannot be heard to urge the objection for the first time in this court.

A discontinuance may be entered against one of several defendants, as well after as before service; certainly this may be done if such defendant be an unnecessary or improper party. Pas. Dig. art. 1449, note 554; 5 Tex. 130;8 Tex. 237;17 Tex. 55;18 Tex. 32.

ERROR from Victoria. The case was tried before Hon. FIELDING JONES, one of the district judges.

This suit was brought by the defendant in error against David Y. Portis, Rebecca Portis, and Daniel Shipman, alleging that David and Rebecca Portis executed to Shipman three notes, set out in the petition, in consideration of the sale to them of a certain tract of land situated in Austin county, and that Shipman afterwards indorsed the notes to plaintiff, and prayed for judgment and enforcement of vendor's lien. D. Y. Portis and Shipman answered, by a plea to the jurisdiction of the court, by a general demurrer, and general denial.

Mrs. Portis answered by a plea that she was a married woman.

Afterwards, on the 7th of May, the plaintiff “withdrew his petition, so far as the same seeks to enforce the vendor's lien for the payment of the note in question,” dismissed his suit as to Rebecca Portis, and prayed for a personal judgment against the other defendants.

On the next day (May 8) the demurrer of the defendants was overruled, and the cause continued for service on Portis and wife.

At the February term, 1861, there was a trial and judgment for plaintiff.Sayles & Bassetts, for plaintiff in error. It is insisted by the plaintiffs in error that the judgment is erroneous, on account of the dismissal of the suit against Rebecca Portis. The notes were in their terms joint, and Mrs. Portis was in court by plea.

While the statute authorizes a joint suit against the makers and indorsers of a note, and authorizes a discontinuance as to such parties as are not served, it also provides that no judgment, in any suit in which an indorser is jointly sued, shall be rendered against him, unless judgment is at the same time rendered against the principal, except when the principal resides beyond the limits of the state, or because he is insolvent. O. & W. Dig. art. 442; Campbell v. Beckwith, 17 Tex. 440;Look v. Henderson, 4 Tex. 303;Moore v. Jones, 6 Tex. 228;Crawford v. Jones, 24 Tex. 382.

If it be said that one of the makers of the note was a married woman, and therefore not bound by the contract, we reply, that it does not so appear of record, nor, if it did so appear, does the statute authorize a dismissal on that ground.

The remedy of the plaintiff is controlled by the statute, which prohibits a judgment against the indorser of a note, except upon certain contingencies, and neither of these were shown to exist.

Even if the plea of Mrs. Portis had been sustained by proof, it would not follow that she would have been relieved from her liability on the notes. The petition alleges a sale to her, and she would have been bound upon her contract, at least to the extent of the value of the land conveyed to her.

The demurrer should have been considered with reference to the pleadings as they stood when the demurrer was heard. The pleadings, as amended, show that Mrs. Portis was jointly liable upon the note; did not show that she was a married woman; and did not state any fact which authorized a dismissal as to her.

Another objection, equally fatal, is, that Rebecca Portis is a joint obligor, and therefore a necessary party. Sayles, Pr. 143.

The statute authorized a discontinuance as to such party only when not served. O. & W. Dig. art. 441. But in this case she had already answered, and the plaintiff was not authorized to discontinue. O. & W. Dig. art. 441; Ellis v. Parke, 8 Tex. 205.

The plaintiff had no right to assume that her plea was true, and at his own pleasure release her from her liability. The other defendants were as much interested as the plaintiff in holding her to her liability on the notes.

W. S. Glass, for defendant in error, suggested delay.

WILLIE, J.

A reversal of the judgment in this case is asked, upon the ground that a discontinuance was entered in the court below as to one of the principals upon a promissory note, and judgment at the same time taken against the other principal and the indorser. It is contended by the indorser, who prosecutes this writ of error, that as Rebecca Portis, the party as to whom the discontinuance was taken, was in court by her plea in abatement, though no process was served upon her, and the notes sued on were joint in their character, a nolle prosequi could not be entered as to her, and judgment rendered against the other principal and the indorser of said promissory notes. It is evident that the suit was dismissed as to Rebecca Portis because she was a married woman, and not liable to suit upon the notes, which were the foundation of the present action. But it is said in argument that it does not appear from the record that she was a feme covert. It is true that it is not so alleged in the petition, but she...