84 WEATHERBY V. TOWNES. [Tyler Term,
Opinion of the court.
The court sustained the demurrer and exceptions, whereupon
plaintiff asked that the case proceed to trial upon the
note, abandoning all claim for foreclosure of the mortgage,
which was refused.
Judgment was rendered dismissing the suit. The refusal
to permit the case go to trial upon the note and dismissing
the suit are assigned as error.
Clark & Todd, for appellant.
No brief for appellee.
REEVES, ASSOCIATE JUSTICE.-There are two transcripts
in this case, one being demanded by appellant's attorneys,
as shown by the clerk's indorsement, and the other without
endorsement, or showing at whose instance it was filed
in this court. The two cases were consolidated on motion
and application of appellant's attorneys.
The suit was brought by appellant on a promissory note
for four hundred dollars, executed by appellee, Townes,
on June 14, 1866, and due in six months. The payment of
this note, with other notes executed by Townes, payable
to Hardison, and Harris, and Wright, was secured by
mortgage given by Townes on certain property described
in the mortgage. Appellant, in his petition, prays for
judgment on the note and foreclosure of the mortgage, and
for a decree to sell a sufficient amount of the mortgaged
property to pay appellant's debt. The other mortgagees,
Hardison, Harris, and Wright, not being made parties to
the suit, the defendant, Townes, excepted to the petition
for the non-joinder of these parties, which was sustained
by the court. The bill of exceptions filed on the same day
states that plaintiff asked leave of the court to proceed to
judgment on his note without foreclosing the mortgage,
which was refused by the court, and the suit was abated
and the petition dismissed on plaintiff's declining to amend.
This action of the court is assigned for error, and the only
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 December 27, 2014.