The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-05-23
JUDICIAL BEHEsTS.
Abstract of Cases Decided by the
Supreme Court.


supreme court yesterday:
Affirmed-B. Schuster Va. IL. b. Frtn-
denthal d. Co., from FL Paso county; opln
ion by Justice Gaines. j. z. Smith VS..
George L. Dickey, from Tarrant comfy;
opinion by Justice zines. LIS Belle
Cowley vs.. L. M. HARDWOOD ct al, from
Caldwell county, affirmed on certificate.
Reversed and remanded-George +.
DJuph.rty va. Edward Eastburn, from
Jack county; opinion by Justice Henry.
w. IL. Bradley Va. j. II. O1sley ct al,
from Lamar county; opinion by justice
Henry.
Hamilton Mill company We. Sinker, Da
Wis 81 Co., from Dallas county; opirion by
Justice Gaines.
Kaufman a. Runge vs. w. l.. Armstrong,
from Ll1no county; opinion by Cnief
Justice Stayton.
Insurance Company of North America
vs.. Friedman Bros, from Fannin county;
opinion by Chief Justice StaytOn.
Reversed and remanded on confession
of error-W. l.. Cabell ct al. vs.. W. b.
Holloway, from Nolan county.
Dismissed by agreement-Cullers d
Henry vs.. Il. r. Davis, from Grayson
county.
II. Brown ". w. X. Ray ct al, from San
Saba county; w. IL, Brady Va. g. w. Sauu-
ders, from Frio county; j. p. McKinne,
administrator Va. j. II. Mlllikea ct al,
from Parker county; j. W. Bard VS.. G. B.
Scarborough, from Jones county.
Ii the Hamilton Gin ana Mill company
case the suit was instituted March %, 06,
by defendant in error as corporation to
a.,
poration, an indebtedness evidenced by
four promissory notes, and to fOreclose
a mortgage upon real estate given to
secure the indebtedness. The judgment
was by default, reciting that defendant,
was duly cited, but the citation not being
copied into the record the assignment
cannot be considered. IL, says the
supreme court, the assignment itself
had net shown that citation
had been issued and served it would have
been our duty, upon the record before US,
to reverse the judgment for want of STR
vice. 1t Is, however, evident from the
whole record that there has been citation
and service, and we will presume that they
were lawful, the contrary not having been
shown.
In the original petit ion there was prayer
for Judgment on the notes and for sale of
the mortgaged property sufficient to pay
the notes then due and to appropriate the
balance to the note not due, and also for
attorneys fees, for which the notes slip
ulated. An amended petition was filed
alleging that all the notes were due, and
asking for judgment of foreclosure and
sale of the property.
o. May Is, 1886, the day the amended
petition was filed, a judgment WAS
rendered in accordance with its prayer,
treating all the notes as then due. The
decree, as is proper in cases where the
whole indebtedness, is due, ordered that,
Ia the event the property did not sell for
enough to satisfy the Judgment, the plain
lift should have execution for the balance
Remaining unpaid. Held: In this there
was error. the note made payable May
15, 1886, being entitled to three days of
grace, did not fall due till May Is, the day
on which the judgment was rendered, and
The payee having oil of the day of its
maturity in which to pay it, cannot be
sued upon it till the next day,
hence the Judgment was prematurely
rendered upon the last note,
and in 80 far as it awarded Il recovery for
the amount of that note aud ex ecutiOn for
any part of that amount it is erroneous,
and erroneous also in so far as it included
ebe attorneys fees on that note, because
She consideration upon which that liability
was to accrue had not happened when the
judgment was rendered.
This court further holds that the stipu
Iation for the payment of attorneys fees
III promissory note does not affect the
h..
Texas Reports, page $50, and Roberts VS.
Palmer, Al Texas Reports, page 6lO.
Whether it destrOysits negotilbility or not
Justice Gaines adds, seems not to have
been determined with us. The courts of
several of the states have held that 1T does
not, and this appears to us the better
opiuion.
The court further holds that the agree
ment to pay the expense of collection, in
the event the note is not paid at maturity,
does not change the fact that the sum to
be paid when due is fixed and uncondi-
tional.
Further held: That while promissOry
note, which is not payable to the bearer
or TO the order of the payee, is not in
strict legal language negotiat ., 1t enjoys
all the privileges of note viii N is pego-
table, 20 far as the maker and payee are
concerned, and note payable TO the
payee only, is entitled to the three days
of grace. STORY, on promiscry notes,
section Al; Smyth Va. Kendall, Six Term
English Reports, page 124; Brown VS..
Chancellor, 81 Texas Reports, page 437,
and other authorities.)
As TO the notes in this case, Justi,e
Gaines explains. We have discussed the
notes upon which the Judgment was rem
dered as shown by the allegations in the
petition. There are COPIES of notes
found in the record which are not made a
part of statement of facts, or of any bill
of exceptions. They show clearly that
the notes were negotiable, but we have not
felt at liberty to look to them. The judg-
ment is reversed and the cause remanded.
In the Schuster Frendenthal ct al. case