Tribby v. Wokee

• Citation: 11 S.W. 1089
• Court: Supreme Court of Texas
• Decision Date: 28 May 1889
• Parties: TRIBBY <I>v.</I> WOKEE.

11 S.W. 1089

TRIBBY

v. WOKEE.

Supreme Court of Texas.

May 28, 1889.

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

Action by W. A. Wokee against J. W. Tribby, to enforce a vendor's lien. Judgment for plaintiff, and defendant appeals.

Stark & Stark, for appellant. Robinson, West & Taylor and Walton, Hill & Walton, for appellee.

COLLARD, J.

There is but one assignment of error relied on in the brief of appellant as follows: "(4) The court erred in rendering judgment on the note and pleadings of plaintiff, because said pleadings and note clearly show that this cause was barred by statute of limitations prior to the issuance of citation herein, and prior to the filing of plaintiff's first amended original petition, which set up a new cause of action." Plaintiff's original petition was filed September 10, 1883, suing upon defendant's note, alleged to be a note of date 25th November, 1879, due at one year, for $330.50, of which one Plaff is the alleged owner. Citation was issued November 4, 1885, two years and nearly two months after the petition was filed, and nearly five years after maturity of the note. This citation was not served until January 5, 1886. Defendant, 14th January, 1886, pleaded general denial, and statute of four years' limitation in general terms, but filed no demurrer. January 20, 1886, the court gave judgment for defendant. Plaintiff asked for a new trial, in which he showed that the court excluded the note offered in evidence because of variance between it and the petition. New trial was granted. July 12, 1886, plaintiff amended his original petition, describing the note as in original petition, (this time giving a copy of it,) except the amount of the note, which is shown to be $332.50, instead of $330.50. Defendant moved to strike out the amendment because it set up a new cause of action. He also amended his original answer, demurring generally and specially, because the amendment of plaintiff set up a new cause of action; pleaded that the suit was commenced more than four years after the cause of action accrued, and general denial. The record shows no ruling upon the motion to strike out, or the exceptions to plaintiff's amended petition. The court gave judgment for the amount due on the note, and foreclosed the vendor's lien as prayed for in petition as amended. The note securing vendor's lien on land sued on was due November 25, 1880. The original petition was filed September 10, 1883. The record shows citation issued November 4, 1885. Appellant claims that the delay in issuing citation was equivalent to delaying suit until the citation issued, and that therefore the cause of action was barred by statute of limitations. In this state the filing of the petition in the district court is the commencement of the suit, and stops the running of the statute of limitations. Rev. St. art. 1181; Pasch. Dig. art. 1425. If it had been shown on the trial that the delay in issuing citation was attributable to plaintiff, or that it was done at his instance, the running of the statute would not have been interrupted by the filing of the petition, but it would continue to run until plaintiff ordered citation to issue. Maddox v. Humphries, 30 Tex. 494. If there was delay in issuing citation, as claimed, the record does not show that it was at plaintiff's request. In the absence of proof it will not be presumed that plaintiff ordered the clerk not to issue process to defendant. The statute makes it the duty of the clerk, upon filing petition, to issue citation to the defendant. Rev. St. art. 1213. Cases might arise where, as from long delay in the issuance of process within the knowledge of plaintiff, he would be presumed to have acquiesced in it, and would consequently be held responsible for it. But we have no such case before us. In the absence of proof to the contrary, it would be presumed that plaintiff used due diligence in the prosecution of his suit, and, if necessary, in the absence of a statement of facts it would be presumed that the citation in the record was not the first citation. We could not presume the contrary. So we conclude that the suit was not barred by...