1 Tex. 364 | Tex. | 1846
The plaintiff below, who is tbe appellant in this court, in bis petition among other things states that one Jones
For the second, he first shows the contract before mentioned, wherein Turner became bound as trustee, to do and perform the trusts therein contained:
Secondly, the death of Jones, constituting Turner by his last will and testament executor, and Turner’s taking on himself the executor-ship:
Thirdly, the contract between Turner and himself as stated above, and the breach of the same by his disregarding its provisions, and running the property off to Texas.
"We are not advised of the particular ground on which the judgment of the court below was founded; but it seems to us that the grounds taken to sustain the judgment in this court would be more appropriate as a special exception to pleas, after full answer before the jury. Hone of them we believe, if sustained, could destroy all cause of action set forth in the petition. We presume that in the opinion of the judge in the court below, the suit was brought on a judgment or decree of the chancery court of the state of Mississippi. By the second section of the act of congress of Texas, approved 19th of February, 1841 (5th Congress, p. 44), it is provided: “That no suit, proceeding, judgment or decree, shall be brought, prosecuted or sustained in any court or judicial magistracy in this republic, on any judgment or decree of any court or tribunal of any foreign nation, state or territory; this republic not being bound by any international law or
How far the act of congress of Texas would be sustainable, in a suit brought on the judgment of a sister state, since our annexation, in the supposed opposition to the provisions of the constitution of the United States, is not before us and it will be sufficient to meet that question when it is presented. This suit wras commenced before that event and we have no hesitation in saying that the act was valid to all intents and purposes when the suit was so instituted. If, therefore, it was brought on the judgment or decree of a foreign tribunal, that it is in contravention of the law of the land and the judgment of the district court is correct. "We will inquire if the action is so brought. The petition as before observed is very prolix and embraces many things that might have been omitted, and if of any use at all, should have been reserved for another stage in the progress of the cause; but, in our opinion, it docs not purport to be brought on the judgment or decree of the chancellor of the state of Mississippi. The plaintiff does not make that the basis of his right to recover, else why should he so minutely and circumstantially state the original indebtedness of Jones; the agreement he made with Jones and Turner; the agreement with Turner before he refers to the decree of the chancellor entered by the consent of Turner? These are only stated as inducements to-fix the liability of Turner, and the suit may have been based upon any one or more of these circumstances without restricting it to the decree. It can, certainly, be no objection to any right of action set forth that he has coupled therewith, as a part of the history of the transaction, that decree; the right is not based upon, but only comes through it as an attendant circumstance. We need not give it the high and undisputed credence claimed for a judgment, but if too much is claimed for it in the petition, as savoring of being the foundation of a right of action (which we do not admit); if it could be stricken out of the petition and still leave enough in it to sustain the suit, the answer or peremptory exception of the defendant ought to have been overruled. Suppose then that the decree was stricken out of the petition, what are the grounds to support the right of action? There would be found the original indebtedness of Jones — the contract between Jones and Turner on the one part, and of the plaintiff on the other, by which