Simmang v. Braunagel
| Decision Date | 17 October 1894 |
| Parties | SIMMANG v. BRAUNAGEL. |
| Court | Texas Court of Appeals |
Appeal from district court, Bexar county; W. W. King, Judge.
Action on a promissory note, brought by Julius Braunagel against Frank Simmang. Judgment for plaintiff. Defendant appeals. Affirmed.
Webb & Finley, for appellant.
Appellee, Julius Braunagel, instituted suit against appellant and C. W. Harris on a promissory note for $800, alleged to be secured by a vendor's lien reserved by Harris in a deed made by him to Frank Simmang on the land therein conveyed. It was also alleged that the note was transferred to Braunagel before maturity, without notice, and for value. Appellant filed an answer alleging that he had, before the institution of this suit, filed a suit, setting up failure of title to the land for which the note was executed, against C. W. Harris and Braunagel, and asking for a cancellation of the deed and note, and that said suit was still pending on appeal to this court, judgment having been rendered in the district court against appellant. The other suit pending was pleaded in bar of this suit. Exceptions to this answer were sustained, and judgment rendered for Julius Braunagel for the amount of his note and a foreclosure of a lien on the land. The action of the court in sustaining the exceptions is assigned as error. Appellant made no defense, except that of lis pendens, and we are of the opinion that the exceptions were properly sustained. Braunagel had been sued in a case in which he had no interest, except to defend himself against the attacks in that case; and it was not incumbent or obligatory on him to ask for a judgment on his note, and a foreclosure of his lien. He had the right to bring an independent suit on his note, which he exercised. The judgment is affirmed.
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Priddy v. Business Men's Oil Co.
...cancel a note for failure of consideration, or the like, will not abate a subsequent action, brought to recover on the note. Simmang v. Braunagel, 27 S. W. 1032; Ellis v. Tips, 16 Tex. Civ. App. 82, 40 S. W. 524; Mutual Life Insurance Co. et al. v. Hargus, 99 S. W. 580; Olschewske v. King, ......
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Long v. Long
...in Texas. The following cases, either directly or inferentially, sustain this view: Payne v. Benham, 16 Tex. 367; Simmang v. Braunagel (Tex. Civ. App.) 27 S. W. 1032; Ellis v. Tips, 16 Tex. Civ. App. 82, 40 S. W. 524; Mutual Life Ins. Co. v. Hargus (Tex. Civ. App.) 99 S. W. 580; Garza v Fre......
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...by the courts of Texas, among the number being: Payne v. Benham, 16 Tex. 364; Railway v. Dowe, 70 Tex. 1, 6 S. W. 790; Simmang v. Braunagel (Tex. Civ. App.) 27 S. W. 1032; Seeligson v. Gifford, 46 Tex. Civ. App. 566, 103 S. W. 416; Harrison v. Littlefield, 57 Tex. Civ. App. 617, 124 S. W. 2......
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Village Mills Co. v. Houston Oil Co. of Texas
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