Dowell v. Mills

32 Tex. 440 | Tex. | 1870

Walker, J.

On the 18th of March, 1869, Albert M. Mills sued the plaintiff in error on a promissory note, made by plaintiff to said Mills, dated December 28th, 1867, calling for $264 27, and due sixty days from date. The ordinary process of the court was served on the defendant below on the 19th day of June, 1869, the plaintiff, Mills, having parted with his ownership in the note sued on, obtained leave of the corn’t and so amended his petition that he becomes merely the nominal plaintiff, and the suit, though it continues to stand upon the docket in Ms name, is prosecuted for the use of the estate of Saunders, deceased, and the defendant failing to appear to plead, answer, or demur, the plaintiff “ for the use of the estate of Saunders,” recovered judgment upon inquiry of damages for the sum of $295 98 and costs of suit. The plaintiff in error insists that this judgment should be set aside, because he thinks it is uncertain, indefinite, and does not show for whom it was rendered.

We do not think it can make much difference to plaintiff who gets the money; he has not denied owing the debt, and as this judgment stands, he can discharge it by paying the estate of any deceased Saunders.

It was perfectly competent for the plaintiff below to sue in his own right, and it was also competent for him to change the character of the suits by making an assignment of the demand to any party or person legally competent to receive it. The plaintiff in error submits whether he was not entitled to notice of the change in the character of the suit against • him below. We think he was, and that he had just such notice when the plaintiff amended his petition. He had been duly brought into court by citation, and was bound to take notice of whatever the court did, or permitted to be done, against him, and he "was entitled to no other notice.

We have examined and approve the case of McFadin v. MacGreal, 25 Tex. R., 73.

The judgment of the court below is in all things approved.

Affirmed.