1875.] WEATHERBY V. TOWNES. 83
Statement of the case.
As to the second point, in relation to the amplification
of the description of the lot in the amended petition, the
general doctrine, as formerly announced by this court, is
expressed as follows in the case of Morrison v. Walker, by
Justice Bell, 22 Tex., 18: " Where the object of an amendment
is merely to cure a defective statement, or to give
form to what was before informal, or the like, we do not
think service of the amendment to be necessary."
Under this rule, which has frequently been laid down,
we think notice of this amendment was not necessary, and
finding no error, the judgment is affirmed.
B . . WEATHERBY V. A. N. TOWNES.
0No'-JOINDER-PRACTICE.-A plaintiff in a suit upon a note, and to
enforce a mortgage, which suit is defective for non-joinder of others
interested in the mortgage, has the right to abandon his suit to fore-.
close the mortgage, after exceptions thereto, and to proceed to judgment
upon the note.
APPEAL from Red River. Tried below before the Hon.
J. C. Easton.
B. F. Weatherby brought suit to January term, 1874,
against N. W. Townes, upon a promissory note for four
hundred dollars specie, bearing date June 14th, and due
six months thereafter; also to foreclose a mortgage bearing
date 22d January, 1868, executed by Townes upon certain
lands to Theophilus Hardison, John Harris, B. F.
Weatherby, (plaintiff,) and A. N. Wright, stipulating an
extension of time for twelve months, and the debts of said
grantees to be paid in the order mentioned in the mortgage.
The other mortgagees were not made parties.
The defendant excepted to the petition for the nonjoinder
of Hardison, Harris, and Wright.
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed May 31, 2016.