Simmons v. Terrell

• Decision Date: 03 December 1889
• Citation: 12 S.W. 854
• Parties: SIMMONS <I>v.</I> TERRELL <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 854

SIMMONSv.

TERRELL et al.

Supreme Court of Texas.

December 3, 1889.

Commissioners' decision. Appeal from district court, Robertson county.

Action by A. H. Terrell and others against T. J. Simmons, administrator of the estate of H. D. Prendergast, deceased, to collect a note given by decedent. There was judgment for plaintiffs. Defendant appeals.

Simmons & Crawford, for appellant. S. A. Posey, for appellees.

HOBBY, J.

The facts were as follows: The note sued on was introduced. It was dated, Austin, October 24, 1885; was executed by H. D. Prendergast, for the sum of $2,000, due 12 months after date, payable to Mrs. A. H. Terrell, with 12 per cent. interest per annum, from date, till paid. It con-contained also this language: "And, in case of suit after maturity to enforce collection, ten per cent. attorney's fees additional." It recited that it was for borrowed money, and that it was secured by deed of trust of same date, executed to S. A. Posey, conveying 2,763 acres of land in Milam county. There was a credit on the note for $240 interest, October 12, 1886. Posey, as attorney for Mrs. Terrell, presented the note to T. J. Simmons, administrator of the estate of H. D. Prendergast, on November 1, 1887, for allowance; and the following indorsement was entered on said claim by the administrator: "Examined and allowed for the sum of two thousand dollars, with interest thereon from October 24th, 1886, at the rate of 12 per cent., to be paid in due course of administration. Claims for attorney's fees disallowed this November 7th, 1887." The deed of trust referred to was in evidence. The suit was on the note for $2,000, with 12 per cent. interest and 10 per cent. attorney's fees, less a payment of $240 interest. This note, when presented to the administrator, was allowed for the principal and interest due, but rejected for the $228.80 attorney's fees.

It is claimed by appellant that, as the administrator allowed all of the claim save the 10 per cent. attorney's fees, this suit was to establish the claim for that sum only, and was therefore not within the jurisdiction of the court, and that the plea to the jurisdiction should have been sustained. We do not think there was error in overruling the plea to the jurisdiction. The rejection of the claim in part authorized the holder, if not satisfied with such rejection, to bring suit on the claim for the full amount, which was a sum within the court's jurisdiction. Gibson v. Hale, 57 Tex. 406....