*1 v. payment protection being required answer, a double to make for the his ferred. to upon garnishment garnishee is bas the debt the appellant. If answer the of can tingent 501; Iglehart Moore, 21 Tex. a con- ed. properly construed Kelley Railway Co., mon- Grain liability 39 S. W. for the purchase, English, Miller Good upon or Co. v. eys contract liability upon man, be construed it can condition judg [3, precedent, judgment have 4] should noted that one of the be appellant appellant’s which was a cloud favor be- ments contended rendered been cause upon judgment gar- subject his land is the to title to debt is fund proceeding upon based, garnishment contingency any which this subject to nishment which judgment liability which is herein precedent before the or condition arises be enforced. appellant’s apparently to court undertook can upon debt which protect lien of this think, do not ap It construed. can be so answer pellant’s in land from lien or be freed judgments cast averred is not judgment, but any cumbrance land, virtue upon are nor title cloud unsupported judgment is of the could de- the court which facts averred termine but beyond scope pleadings title, upon they clouds were Campbell reason. Mack ineffective for that appellant al- himself with the contented interplead required to so should have legation insisted that he believed question no validity could arise as to that the thereafter judgments It is not averred clouds. were the that ed. that the transfer asserted properly they index- recorded and were Looney’s Campbell Mack Charlie Campbell debt to Furthermore, disclosed if the answer purchase, under the contract upon they title clouds Valley Bank be Pecos before yet land, facts are averred no to any, court, rights, be their can Looney upon any right to insist authoritatively This determined. upon or the execution their removal Gentry, Campbell is also true should be and Charlie as a condition his answer to bond referred required proceeding interplead gar to the land. to to be nishment so from he would purchase for The terms the contract precluded questioning thereafter correctness of a might shown, the land are possible judgment quitclaim If, purchased by matter as a deed. in favor of the bank or be rendered purchase fact, was such as the contract Gentry, and J. F. McKenzie should be obligation Campbells impose to before the court as the trustee and holder judgments, protect against then these parties garnished fund. With all Campbell there- the mere fact that Charlie conflicting and and before claims give voluntarily agreed that he would rights finally parties fully all of be impose upon him obli- the gation bond adjudicated, determined and this give same, as he could have garnishee is a substantial is to which the pudiated give the bond and entitled, to have and the court’s failure upon payment. We therefore hold insisted that them dering judgment disposing before it and his action in ren court did not err fund, with render being them before errone out ous. assignments, answer, remaining but the complain make the court to The cause is reversed and re- therefore Campbell, Campbell, Mack Charlie the Pecos proceedings in accord- for further manded ance Bank, Valley Gentry, and J. Mc- G. N. F. opinion. parties proceed- garnishment Kenzie requiring interplead, was J., McKENZIE, disqualified, and not sit- clearly requiring a reversal ting. ment. Appellee brief, has filed no arewe theory not advised of the therefore which DERRICK SMITH et lower court acted pursue of Civil of Texas. the course which have indicated Austin. we March 1912. On Motion for Re- pursued. should have been We deem un- hearing, 1912.) necessary length to discuss at Liability pursued. this course should have been OF INDORSEES WAIVEK PROTEST QUES settled, however, garnish- It is well TIONS foe Court. note, begun lapse proceedings garnishee In an action on a ment entitled, of the first term after the of action had procedure, under our sought accrued, dorser, charge an in- garnished claimants to the fund be- interpleader required 304, fore of an indorser conflicting so that their claims be there suit of the court to which the maker before the first term adjusted and‘determined, garnishee and the protected litigation future risk or Dig. *For other eases see same and section NUMBER *2 (Tex. why term, showing good pay second and a failure to or in- term, not was instituted before the first thereon, terest the election in the first for the court should mature either of a sufficient excuse for not in- stituting term. beginning both of which were a vendor’s secured first suit before the lien. J. M. cases, [Ed. Note.—For see Bills and other September, the 14th of Dig. 680-705; Dig. Notes, Cent. §§ 1910, in the Mc- Nineteenth district court of 209.*] county Lennan on both of said notes 299*) Liability (§ and Notes Bills — Medford, maker, Derrick, and — — Ques oe Protest Indorsees tions Waiver dorser, alleging that former resided for Court. Sayles’ excuse, It is anot within county, Fannin and the latter in McLennan and that said notes had been payee 304, art. du- theretofore that after ly him, transferred and indorsed to and began correspondence the maker for the and in reliance on the purpose maker’s collecting it, paid, praying thereof had ever been delayed duty pay the note and foreclosure his vendor’s pending negotiations for settlement. lien. [Ed. other Note.—For see Bills and answered, urging general Derrick alone a Dig. Notes, 680-705; Cent. §§ plaintiff’s petition; and demurrer asserting the latter appeared effect since it 299*) Liability 3. Bills and Notes — of Protest Ques Indorsers Waiver from the face of the for Court. indorser, he was sued and said notes payee begin Where a of a note did protested were not and suit was not filed expiration after until the second term of maturity, court after the indorser cannot be on the same before the first term of the charged, Ann. Civ. St. to which said suit could have been providing 304, may an indorser brought, term, nor at protest, by suing fixed, without the good why suit wás not instituted be- maker before the first term of court to which it accrue, good first fore the first term next term, or before the second accrued, action he was therefore entitled to before the judgment. term. having sustained, This demurrer Bills granted Notes, file, Dec." was leave file, amendments, his first and second trial the maturity —Actions— substance Pleadings Sufficiency. note, began of the first corre- In an action on two notes which matured spondence purpose with Medford for dates, at different the record not collecting same; peti- acknowledged second due at a a time of Medford -sujt, containing description tion and with holder a failure to full a of the notes liability began negotiations of settle- giving dates ment which compromise part pay- continued election of the time, offering first note or interest second, property, due thereon would mature the and fur- ment in which he declined ther been accept; progress petitioner prayed pay- paid, and that the correspondence, which lasted until sufficiently both, ment of by so as to showed election an. July, Derrick was informed of Medford’s declare the second support recovery. him; default and Note.—For see Bills and plaintiff, good faith, expected Medford to Notes, 468.*] 1462, 1463; § for which reason suit was not sooner instituted. in error renew- Error from District McLennan exceptions amendments, ed his to said trial Surratt, Judge. Marshall overruled, but the same were to which he M. J. B. Der- H. excepted. rick and There was a another. jury trial, resulting There was in a ver- brings and defendant Derrick dict and in favor of error. Affirmed reversed and Derrick, both Medford and prosecutes from which the latter alone error, assigning óross, Street, writ error on Gross the action Clark, of ror. & Pressler & McCrea and Clark sustain said ex- ceptions. for defendants in error. [1-3] The first term of the McLennan Medford, day county RICE, R. E. district court which convened after June, 1909, made, executed, of his two certain and delivered of the first note was that of the promissory district, began notes for the Nineteenth the 4th each, payable July, of of first $352 sum B. H. and at order term of the Fan June, county 1910, nin on the 18th district court convened on the bearing Monday respectively, August, third interest the 22d of cent, per per month; annum, of 8 the rate said Fifty-Fourth there was 'a term of the cent,
providing of 10 district in McLennan fees, county, and further which convened on the third Mon- *For other cases see same and section NUMBER in Dec. y. note described mature ant in error insists said to be note. in wise tiff ruling the of the election. notice, ment in favor of the first term the reasons for so under that with; the ant’s maker of ed with the commence the suit before the second term tober, gins, ute, to the second term before suit maker, therefore hold er, tion first tion of the on out did not constitute the the the should be both teenth district court of court after the and instituted the Rev. set forth on the still tuting In Without [4] Guinn, his.sixth any promissory court court erred against him for the pleadings, such it petition erred instance, Civ. this state the 16 we believe that failure to due, asserting exceptions. Seguin However, was held elapsed convened suit before the second for both and allowed the September, an this, Tex. statute must be had, to which suit can be of action shall is made 137 S. Stat. of same bring of action accrued. indorser an inwas undertaking ordinary exception assignment it did not show said second note good not constitute in rendering contemplated the suit was not a matter fees called for note before appears that, part October on the W. this a suit to such failure. But all, plaintiff’s petition, insufficient. and hold that good plaintiff upon said first that, passing upon since method at election of action shall appear first term next after prima good plaintiff cause; does not accrue, for the determina- principal, interest, McLennan in error to indicate where fixing Mill & Power Co. to sustain defend- In but this proposition reasons we strictly the first term of rendering judg- thereon, good Monday three by protest and facie evidence were Elliott series of notes erred same present case, proven. But, been stated would Article and even an indorser when in against a condition or not omitting court like ipso the Nine- is, the mak- this case terms complied contends in dispens- because to show such election. It term of ther shows that on or about the face of the defend-, reasons county, in there plain think facto insti with over- addi- what Wig- ed was to We not er shows that Oc- for We are inclined to believe that to on. ment for the entire the first and second by notes herein described. Wherefore amendments first note both for debted to original together that the first then recited the being tained clauses versed notes or indebtedness thereof. We of red petitioner, rendering judgment against rehearing, scribed, filing signment but firmed. as ment note, original petition, fell that ond was not cial election second note became due time suit was gations et Affirmed in Believing, this matter August, 1909, heretofore collection, due on the note, giving in equivalent aforesaid either of the said *3 due, shall, against provided think all above on opinion, due at the time suit was filed there- as On Motion assigned will be overruled. See Bexar because your- petitioner, App. on two insisting for a valuable in the aforesaid. petition, that, be recalled that part note had filed, with instructions on one indicated, think the mentioned, together part notes were to the effect that failure to that a defendants, ato mature the notes herein at error, Smith, relative to this Building the which are set out in the notes, following provisions: “It dates allegations, respects thereof.” petition and reversed and render- declaration would indebtedness sued 29 appeared has in election of the holder trial amendments filed in behalf of said sufficient' amount, indorsement election of in Your S. each of which con- Rehearing. failure to in notes, in the court erred filed motion full allegations appears error mature consideration, & Loan W. 237. asking although him on the sec- or the rendering judg- June, 1910, payable petitioner reason maturity, and the suit was are sufficient contained as to the bank whereby same court on to demand paid. respect contention, Luzenburg aforesaid, plaintiff; with the transfer- Ass’n, petition- thereon, this as- ground at entire erred, upon, hold- your alle- spe- fur- the the af- an 9 *4 election, jury that he has made the debt damages to assess the for the sev- separately. eral tracts cited, is last due. case above Agriculture, Note.—For other Appeals see LEd. San Civil Antonio Court of Dec. held, question, on a similar somewhat least, prima petition was, Appeal District Ellis facie evidence such election. Hawkins, Judge. F. L. alleged original petition having The facts T. C. Forrest the Mis- the first note was souri, Railway Company Kansas & Texas in to account Texas. From caused both notes appeals. fendant Reversed and remanded. bank caus- for collection and Coke, Dallas, Groce, A. S. and G. C. paymeiit thereof, ed demand to be and made Waxahaehie, appellant. Clyde Winn and failure on Whipple, Waxahaehie, ap- Tom. both of error to under the pellee. circumstances, ask- ing judgment indebtedness, TALBOT, appellee, Forrest, brought The sufficient, recover, this suit der what is known as un- to show that grass Johnson option ror, Smith, had exercised to de- (Acts Legislature, penal- 117), ute c. clare said indebtedness due at the time the ty prescribed for a violation of that instituted; suit was for which reason the alleges what he to be four rehearing motion is overruled. contiguous appel- him farms owned Motion overruled. right way, by lant’s railroad reason of grass going right Johnson seed way years during 1908, 1909, and 1910. MISSOURI, K. & T. RY. TEXAS v. petition alleges, CO. OF The in substance: That FORREST. Forrest, now, T. and has been C. years, for a number the owner fee Civil Texas. Dallas. May 25, Rehearing simple Denied of four certain farms. That 15, 1912.) high prior in a same were state cultivation complained injuries (§ 247*) Agricul of. Constitutional Law That (§ 8*) Equal ture Law —Weeds. Pbotection ox the except farms, has on it a the third dwelling tenants, barn and house imposing penalty upon statute occupied by grass each of tenants. That railroad which allows Johnson or Rus- go right way sian thistle to seed its is right way runs defendant’s road not a violation Const. U. Amend. said farms line due north almost denying the laws. company equal protection of south, wide, about feet where it bounds contiguous farms, and is to said see Constitu ;* Dig. 703; Law, § way thickly tional covered Johnson Dec. grass. A minute of each of said (§ 303*) 2. Constitutional Law Pro given, —Due farms charges further cess ox Law —Weeds. the defendant hauled Const, Neither is in violation of placed grass seeds taking property roots on railroad companies son process way of law planted per- rea- same and unjust discrimination. placed willfully it to be mitted negligently; thereon Note.—For other see Constitu years 1908, and that Law, tional grass 1909, and 1910 the Johnson way matured and to seed and went ox plaintiff’s farms, alleging pen- infested (Acts Leg. 117) Under the statute c. farm, for each $250. alties charges Plaintiff further adjacent giving way damages rights landowners railroad ways and means for a company an action named and for infested, said farms became and claims dam- acre, grass if the allows Johnson seed, ages Russian thistle to the land the sum of $8
*For other cases and section NUMBER in & Am. No. Series & Rep’r Indexes reference er elected to declare notes (Tex, only allega penalty contigu- recover one that both of said for one land, though ous tract of it be subdivided and to, were in fact due above referred tenants; but, rented to numerous of recover if the tracts was rendered thereon. time separated by distance, may land are Miller, Graham v. Luzen See for each tract. berg Bldg. Ass’n, & Loan Tex. Bexar Graham v. Civ. Miller, supra, held, through Mr. this court Justice, Key, Chief then Associate Justice Where a railroad sued for thing necessary only penalties allowing maturity of the election grass the holder’s to seed in violation of the stat- ute, and the mature, an claimed to averment be entitled penalties to several because several tracts of specially has unless injured, improper land were to refuse excepted to, a averment of notice requir- instruction of defendant