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. Page: 321
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1875.] GRANT V. WHITTLESEY. 321
Opinion of the Court.
APPEAL from Harris.
Suit by Whittlesey v. R. A. & E. A. Grant, on a promissory
note. The petition failed to allege that the note was due, or
that defendant ever became liable or promised to pay it, or
that the note was not paid. The petition alleged that the note
was executed for services rendered by attorneys in defending
the separate property of the wife in a suit against her. Judgment
for plaintiff, authorizing a levy of execution on the separate
property of the wife, or the community property, at the
election of the plaintiff.
Winch & Scafcer, for appellant.
Crcank c WVebb, for appellee.
DEVINE, J. The plaintiffs in error assign, as grounds for a
reversal of the judgment, the overruling the demurrer of Grant
and wife to the petition of Whittlesey, who was plaintiff in the
court below, and to the error in the judgment which authorized
thle plaintiff, Whittlesey, to have execution levied, at his
option, on tlhe community property of defendants, or on the
separate property of the wife. There was no error in authorizing
tlic plaintiff to have execution levied as stated. On the
trial, it was shown to the satisfaction of the judge (a jury being
waived), that thle debt was incurred for the protection of the
sclarate property of tlle wife, and the note freely executed by
herself and husband. The entry in the judgment complained
of was authorized by Article 4644, Pasehal's Digest: "When
judgmentt is rendered against the wife for necessaries fur"
wished her, or services rendered for the protection of her
Tle error assigned by reason of the overruling demurrer to
plaintiff's petition is met by the appellee's argument, that a
demurrer not acted on is considered waived, and that a verdict
cures defects in pleading-lboth positions are undoubtedly correct
to a certain extent; they do not apply, however, in the
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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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/329/: accessed November 18, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .