Carmichael v. Curlee

Court of Appeals of Texas

Carmichael v. Curlee

126 S.W.2d 1053, 1939 Tex. App. LEXIS 543

CourtCourt of Appeals of Texas

DecidedMarch 29, 1939

DocketNo. 10496.

StatusPublished

This text of 126 S.W.2d 1053 (Carmichael v. Curlee) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carmichael v. Curlee, 126 S.W.2d 1053, 1939 Tex. App. LEXIS 543 (Tex. Ct. App. 1939).

Pincite

Opinion

SMITH, Chief Justice.

Appellee brought this action on a promissory note and for foreclosure of a chattel mortgage lien upon an automobile. He alleged that appellant was justly indebted to him, as evidenced by a certain promissory note, and set out the terms of the note, but not in haec verba. He did not affirmatively allege that he was the owner of the note, or that the note was ever executed and delivered to him. Appellant contends that in the absence of those allegations appellee was not entitled to recover. It is generally true that in a suit upon a promissory note the plaintiff must allege ownership or execution and delivery of the instrument. 6 Tex.Jur. p. 904, § 239; Wilson v. Martin, Tex.Civ.App., 87 S.W.2d 539, writ dismissed.

In his forty-five page answer and cross-action appellant more than once admitted execution and delivery of the note to appellee, but contended that the same was procured by fraud. No part of the answer was abandoned or superseded by other pleadings, or stricken on exception, although the court dismissed the cause of action asserted by way of cross-action, for want of jurisdiction. This dismissal did not have the effect of striking the pleading embracing the admission mentioned, which was made, in one place, in appellant’s affirmative pleading of his defense of fraud on the part of appellee. This admission in appellant’s pleading effectually supplied the omission from appellee’s pleading of the essential allegations mentioned. 33 Tex. Jur. p. 620, § 171.

The judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

SMITH, Chief Justice.

Appellee brought this action on a promissory note and for foreclosure of a chattel mortgage lien upon an automobile. He alleged that appellant was justly indebted to him, as evidenced by a certain promissory note, and set out the terms of the note, but not in haec verba. He did not affirmatively allege that he was the owner of the note, or that the note was ever executed and delivered to him. Appellant contends that in the absence of those allegations appellee was not entitled to recover. It is generally true that in a suit upon a promissory note the plaintiff must allege ownership or execution and delivery of the instrument. 6 Tex.Jur. p. 904, § 239; Wilson v. Martin, Tex.Civ.App., 87 S.W.2d 539, writ dismissed.

In his forty-five page answer and cross-action appellant more than once admitted execution and delivery of the note to appellee, but contended that the same was procured by fraud. No part of the answer was abandoned or superseded by other pleadings, or stricken on exception, although the court dismissed the cause of action asserted by way of cross-action, for want of jurisdiction. This dismissal did not have the effect of striking the pleading embracing the admission mentioned, which was made, in one place, in appellant’s affirmative pleading of his defense of fraud on the part of appellee. This admission in appellant’s pleading effectually supplied the omission from appellee’s pleading of the essential allegations mentioned. 33 Tex. Jur. p. 620, § 171.

The judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

126 S.W.2d 1053, 1939 Tex. App. LEXIS 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmichael-v-curlee-texapp-1939.

Opinion

Related

Cite This Page — Counsel Stack