Hewett v. Thomas

Citations

• 37 Tex. 520

Syllabus

<p>1. Plaintiff brought an ordinary action in personam on a promissory note, but afterwards, by an amended petition, set up a mortgage and prayed foreclosure. Held, that he was bound to serve the defendant with notice of the amended petition.</p> <p>2. Being sued ón a note, the defendant answered that he had made payments to the plaintiff’s attorney, who held the note for collection. Plaintiff excepted, because the answer did not aver that plaintiff had authorized his attorney to receive other payment than money ; and the court below sustained the exception. Held, error.</p> <p>3. Defendant, being sued on a note, answered that he had given plaintiff a mortgage on certain land, to secure the note ; that plaintiff placed both note and mortgage in an attorney’s 'hands for collection ; that, by payments to the attorney, and by offsets, defendant had fully satisfied the debt, and plaintiff’s attorney had surrendered to him the mortgage. Plaintiff excepted, because the answer did not aver that the mortgage was surrendered by the plaintiff himself, or that he had authorized his attorney to surrender it. Held, error to sustain the exception.</p> <p>4. Exceptions to defendant’s answer being sustained in the court below, he asked leave to amend. The court below granted the leave, but on condition that the amendment be filed instanter. This was error, to the prejudice of defendant.</p>