Smith v. Nesbitt

• Decision Date: 04 May 1921
• Docket Number: (No. 2902.)
• Citation: 230 S.W. 976
• Parties: SMITH v. NESBITT et al.
• Court: Texas Supreme Court

230 S.W. 976

SMITH v. NESBITT et al.

(No. 2902.)

Supreme Court of Texas.

May 4, 1921.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit by J. B. Smith against G. G. Nesbitt and others. From a judgment sustaining defendants' exceptions to certain items in the complaint and defendants' motion to dismiss for lack of jurisdiction, plaintiff appealed to the Court of Civil Appeals, which reversed and remanded the cause. On motion for rehearing the court presented certified questions. First question answered in the negative, making answer to second unnecessary.

Hunter & Hunter, of Fort Worth, for plaintiff.

B. K. Goree, of Fort Worth, for defendants.

GREENWOOD, J.

The following statement is taken from the certificate of the Court of Civil Appeals, viz.:

"On August 13, 1915, J. B. Smith, appellant, filed suit in the county court of Tarrant county for civil cases against G. G. Nesbitt et al., alleging that on May 25, 1910, plaintiff conveyed to the defendants certain public school lands in Reeves county upon which was due the state the sum of $1.87½ per acre; that the consideration for said conveyance on the part of defendants was the payment of $1,313 cash, and the execution and delivery of four vendor's lien notes of even date with deed in the sum of $1,313 each, payable to plaintiff, and the assumption by defendants in said deed of the obligation and debt, including principal and interest, payable to the state of Texas; that the interest due the state was payable on November 1st of each year and amounted to the sum of $73.31; that defendants refused and failed to pay the interest due the state for the years 1911, 1912, and 1913; and that plaintiff, in order to preserve his vendor's lien to secure the unpaid purchase price due him from defendants, and evidenced by the four vendor's lien notes hereinabove described, was forced to pay, and did pay, the interest for said three years as follows: Interest for 1911, paid March 11, 1912, $72.31; for 1912, paid June 10, 1913, $72.62; for 1913, paid July 23, 1914, $72.55. No vendor's lien was retained in the deed to secure the payment of the interest due the state and assumed by defendants. It was alleged that by reason of the assumption by the defendants of the obligation due the state, as hereinabove stated, defendants became liable to the plaintiff for said sums of money paid by plaintiff, with interest thereon at the rate of 6 per cent. per annum from the respective dates of payment; that defendants also refused to pay the four vendor's lien notes, hereinabove mentioned, and plaintiff was compelled to sue defendants thereon and foreclose his lien upon the said land, upon which suit he recovered after several years' litigation with defendants.

"Defendants demurred generally to plaintiff's petition, and as to items alleged to have been paid March 11, 1912, and June 10, 1913, pleaded the two-year statute of limitations, alleging that as to said two items paid by plaintiff, if they were so paid, plaintiff paid them as a surety of said defendants, and that the two-year statute of limitation would apply, and that plaintiff was barred from a recovery thereon. Defendants further pleaded to the jurisdiction of the court, alleging that the amount sued for, after the elimination of said two items, was below the jurisdiction of the county court, and prayed that the cause be dismissed for want of jurisdiction.

"The trial court sustained the defendants' exception as to items of interest for 1911 and 1912, and also sustained defendants' motion to dismiss the cause `upon the ground that, the two items aforesaid having been stricken out on the exceptions to plaintiff's petition, the court had no jurisdiction of the amount remaining and involved in said suit, to wit, the sum of $72.55.' From this judgment plaintiff appealed to this court. In an opinion, a copy of which accompanies this certificate, in cause No. 8437, entitled `J. B. Smith, Appellant, v. G. G. Nesbitt et al., Appellees,' ...