Smalley v. Taylor

Citations

• 33 Tex. 668

Syllabus

<p>1. It is settled, that in this State a third party may intervene in a suit, to protect his own rights, and in doing so may assert an interest adversely to plaintiff or defendant; and it is believed to be immaterial at what stage of the case, previous to its final submission, this interest is interposed, provided the principal suit be not delayed to the prejudice of the other parties litigant.</p> <p>2. A chose in action may be purchased while suit upon it is pending; and this court has repeatedly decided that the assignee of an open account may sue and recover judgment on it in his own name. (Devine v. Martin, 15 Texas, 30.)</p> <p>3. Pending suit upon an open account, the defendant suggested that the plaintiff had been adjudicated a bankrupt, and thereupon a third party was permitted to intervene and set up an assignment to him of the indebtedness, made by the plaintiff anterior to his bankruptcy—the defendant objecting to the intervention, and excepting to its allowance and to rendition of judgment in favor of the intervenor. Held, that on the facts as disclosed in this record the bankruptcy of the plaintiff was not legitimately before the court; and further intimate!, that although the plaintiff’s assignee in bankruptcy, and possibly his creditors, could contest the alleged assignment to the intervenor, yet it was not competent for the defendant to do so.</p>