Brooks v. Breeding

Citations

• 32 Tex. 752

Syllabus

<p>1—Previous to the statute of January 11th, 1863 (Paschal’s Digest, Art. 334), suit as prescribed in the act of 1848 (Article 239) was the only method by which liability could he fixed upon indorsers of hills of exchange or promissory notes, other than such as were “ contracts between merchant and merchant, their factors and agents.”</p> <p>3—If a joint action against several assignors of a promissory note was inhibited by Art. 333, Paschal’s Digest, that inhibition was abrogated by the subsequent enactment contained in Article 339. But it seems that Article 223 is applicable only to the non-negotiable instruments mentioned in Article 231—the word “ sections ” in the former article being a misprint for “section.”</p> <p>3— Errors in law committed in the rendition of a judgment by default are not waived by reason of failure to take exception to them in the court below; and such errors are available by motion in the court below for a new trial or in arrest of judgment, or by writ of error to this court.</p> <p>4— On a note due January 1st, 1862, not being a contract between merchant and merchant, their factors and agents, the holder, without alleging cause for his delay, brought a single action in October, 1866, against the maker and two successive indorsers in blank, and judgment was rendered by default against all the defendants. The indorsers prosecute their writ of error. Sid, that it was proper to sue both of the indorsers and the maker in a joint action; but held further, in view of the plaintiff’s failure to sue within the prescribed terms of court' after Provisional Governor Hamilton’s proclamation abolished the stay laws and opened the courts, that the legal diligence requisite to charge the indorsers was not exercised by the plaintiff, and he was, therefore, not entitled to take judgment against them; and as this error is patent on the face of the record, and is available on the writ of error, the judgment against the indorsers is reversed and the cause di