Gregory v. Leigh

33 Tex. 813 | Tex. | 1871

Walker J.

We confess we have to presume a good deal in favor of the right road to justice, in order to take jurisdiction of this case. There is no statement of facts accompanying the record. The record undoubtedly recites in a very faulty manner the citation • in- error thus: “ You are hereby commanded to W. B. Lee,” etc. The remainder of the documeut shows conclusively that it was a precept of the court, known as a citation in error ; it was served-as such on the defendant in error, and he is here in this court answering by his council with great ability. The word summons we have no doubt was in the original writ, and we cannot suffer the ends of justice to be defeated because a blundering clerk sends us up a defective record.

It is manifest that the plaintiff in the case below totally misconceived the nature of the obligation he sued upon ; it reads as follows :

Ban Antonio, August 24, 1868.

“ $500. On the first day of January, 1864, J, the undersigned, administratrix of the estate of Cordelia M, Denison, deceased, promise to pay to Wm. B. Lee, or bearer, the sum of five hundred dollars, for value received.

“JULIA J. LOYE.”

This was the mere individual contract of Julia J. Love. The words “administratrix of the estate of Cordelia M. Denison, deceased,” are mere descriptio persones and are only surplusage in the note. The plaintiff below was further mistaken, that by means of his contract with Julia J. Love he had acquired any lien upon the estate of Cordelia M. Denison. Julia J. Love was individually liable to him, and it is quite within, the range of probability that, had she paid the money, the probate court would have refused to charge the same to the estate of Cordelia M. Denison. (25 Sup. Tex. R., 176.)

The district court erred in overruling the demurrer to the petition, and for this error the judgment is reversed and the cause remanded.

Reversed and remanded.