55 S.W. 564 | Tex. | 1900
This suit was brought June 15, 1896, by Sam Robinson against John T. Garrett and his wife, Josie Garrett, to recover the amount of a promissory note executed by Garrett to D.T. Robinson, and by the latter transferred to plaintiff November 10, 1895, and to foreclose a vendor's lien upon land for a part of the purchase money of which it was given, Mrs. Garrett being made a party because she claimed some interest in the land. The defendants answered July, 1896, pleading in abatement the plaintiff's want of capacity to sue because he was a minor. They also alleged that the note sued upon had been transferred by D.T. Robinson to the plaintiff, after its maturity and without consideration, for the purpose of defeating an offset which they held against it, and that D.T. Robinson was still the real owner of it. They then pleaded, in offset against the note sued on, a note executed by D.T. Robinson and his wife, E.O.C. Robinson, on May *411 18, 1894, payable November 15, 1894, to J.T. Garrett or Josie Garrett. The plea contained all the allegations of fact essential to a petition against D.T. Robinson for a recovery against him, and closed with the statement that the defendants "are ready and willing and hereby offer to set off and allow to the said D.T. Robinson an equal credit on his said note with the amount of the note here sued on, and they pray that this may be done and for all general or special relief to which they may be entitled in law or equity." There was no prayer that D.T. Robinson be made a party nor for a judgment against him.
In January, 1897, a plea styled first supplemental petition was filed, in which the plaintiff, Sam Robinson, and his father, D.T. Robinson, who then first became a party, replied to the defendant's answer and stated that, if it be true that Sam Robinson was a minor, D.T. Robinson appeared as his next friend, and adopted the pleadings filed by him and prayed for all the rights and remedies to which plaintiff may be entitled; and further stated that if it should be found that Sam Robinson had no title to the note sued on, then that D.T. Robinson made himself party plaintiff, adopted the pleadings of plaintiff, and prayed for judgment on the note sued on and for foreclosure of the lien. The supplemental petition met the plea of set-off by alleging payment of the note therein set up.
On July 14, 1896, another plea, styled "first amended supplemental petition," was filed, which begins: "Now comes the plaintiffs," and proceeds to allege that if Sam Robinson was a minor at any time since the bringing of the suit, he had long since become of age, and to repeat and amplify the allegation of payment of the note pleaded by defendants as an offset. In this pleading, D.T. Robinson's name is omitted. After the parties had announced ready for trial, the defendants dismissed their cross-bill as to E.O.C. Robinson, the wife of D.T. Robinson, who had not been served, and their counsel called the attention of the court to the fact that an appearance had previously been entered for D.T. Robinson by pleadings filed in the case and that he was omitted from the supplemental petition last above stated, and asked leave to withdraw their announcement of ready for trial in order to make him a party upon their cross-petition on the note pleaded in offset. Thereupon, D.T. Robinson, being present in court, entered his appearance and adopted the pleadings of plaintiff contained in the amended first supplemental petition, which was done by consent of all parties. The trial then proceeded.
The only question of fact in dispute was as to whether or not the note pleaded in offset by the defendants had been paid, and upon it there was a conflict of evidence. The court submitted that question alone to the jury, instructing them that if they should find that the note had been paid, they would return a verdict for the plaintiffs for the amount of the note sued on and for a foreclosure of the lien alleged by them; but that if they should find that the note pleaded in offset had not been paid, they would return a verdict against D.T. Robinson in *412 favor of the defendants for the balance thereof, after deducting the amount of the note sued on by the plaintiff. The jury returned this verdict: "We, the jury, find against D.T. Robinson in favor of defendants for fifty-nine and 13/100 dollars ($59.13)." Upon this verdict, judgment was entered that Sam Robinson take nothing and that the defendants recover of D.T. Robinson the sum found.
On appeal by the Robinsons, the Court of Civil Appeals held that the District Court had no jurisdiction to entertain the counterclaim pleaded by the defendants, and reversed the judgment, but remanded the cause in order that defendants might, if they could, show the insolvency of D.T. Robinson and a necessity for the exercise of the equitable powers of the District Court. This writ of error was applied for and granted on the ground that the judgment of the Court of Civil Appeals practically settled the cause, applicants stating that they could not show the facts held essential by that court to entitle them to enforce their claim in the District Court.
1. The jurisdiction of the District Court over the cause of action asserted by the plaintiff included the power to determine any matter of defense which the law entitled the defendants to plead against it. The set-off was a defense, which, if established, defeated plaintiff's right to recover. This jurisdiction was a part of the power to pass upon plaintiff's claim and it was not essential to it that the offset pleaded should have been large enough in amount to have given the court jurisdiction of it in an independent suit to recover the debt. It is equally true that, being invested with jurisdiction to determine plaintiff's cause of action, the court had the incidental power to determine the whole question of indebtedness between the parties, and to render judgment in favor of him in whose favor a balance was found to exist. Rev. Stats., arts. 750-752.
We conclude that the Court of Civil Appeals erred in reversing the judgment of the District Court upon the ground stated, and it therefore becomes necessary that we determine whether or not other ground for reversal is made to appear by the brief of defendants in error filed in that court.
2. We think that, from what has been said, it follows, under our decisions, that, as D.T. Robinson became a party to the action and was a proper party to the issue made by defendants in presenting their off-set in order that their rights might be fully adjudicated, the jurisdiction of the court over the main cause of action included the power not only to adjudge that the note sued on by plaintiffs was satisfied by that pleaded by the defendants, but to give judgment for defendants for the balance of the latter note. Peticolas v. Carpenter,
3. To entitle defendants to a judgment against D.T. Robinson for the balance due on his note after satisfying that sued on, their pleadings must have been sufficient to authorize such relief. Had D.T. Robinson been the plaintiff when defendants' answer was filed, no serious question *413 as to its sufficiency to entitle them to judgment, under the statute, for such balance could arise. He was not then a party and defendants did not ask that he be made such, but they could, at any time, have caused him to be brought in. All necessity for their doing so was removed by his voluntarily appearing and adopting the pleadings of the plaintiff, virtually assuming the attitude of a plaintiff seeking to enforce the demand sued on. The fact that his name was not mentioned in the supplemental petition last filed can not be held to have had the effect of dismissing him from the cause, if, indeed, he or the original plaintiff could have taken him out of it in this way. That such was not the purpose or effect of such pleading is put beyond doubt by the action which was taken as above stated. The purpose of retaining him could only have been that the proper judgment might be rendered upon the determination of the only issue made, as to payment of the note alleged by defendants.
4. The verdict must be construed in connection with the charge. Under the charge, one of two verdicts must have been rendered, viz.: (1) In favor of plaintiff, Sam Robinson, against defendants for the amount of the note sued on and foreclosure of lien, if the note pleaded in set-off had been paid; (2) in favor of defendants against D.T. Robinson for the balance of the set-off, after deducting the amount of the note sued on, if the first named note had not been paid. Under this charge, the latter verdict comprehended the whole issue submitted and was sufficient.
5. The charge of the court, in using the language "paid and canceled" with reference to the payment of the note pleaded by defendants, was not calculated to mislead the jury into believing that such note must have been both paid and formally canceled. The charge evidently means an agreement between the parties that, in the conveyance of the land to the Garretts, in which it was claimed the note had been satisfied as a part of the consideration for such conveyance, the note should be paid and canceled. This was the agreement which plaintiff's evidence tended to prove and defendants' evidence to disprove. Nor was the charge misleading in requiring the agreement of all parties to that transaction, — Robinson and wife and Garrett and wife. The agreement pleaded by plaintiffs and testified to by their witnesses was one to which all of these persons were parties. The defendants merely denied such agreement. The jury, under the evidence, could not have found an agreement to which Garrett was a party and his wife not a party. There was no error in submitting the issue as the parties made it.
6. There are some other assignments of error, but none of them present any reason for reversing the judgment or are of sufficient importance to require further comment.
The judgment of the Court of Civil Appeals is reversed and that of the District Court is affirmed.
Reversed and judgment of District Court affirmed. *414
