DeWalt v. Snow

25 Tex. 320

• Court: Texas Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Bell, J.

In this case the .original petition made no mention of the mortgage executed to secure the payment of the promissory notes sued on. The mortgage was declared .upon in the amended petition .only. There was proper service of the original petition, but no service of the amended petition setting up the mortgage. In the case of Morrison v. Walker, 22 Tex., 18, it was held that “ in all cases where a demand for money upon a cause of action other than that set forth in the original petition, is made by an amendment, there must be service of the amendment, or the record must disclose the fact that the party to be .affected by the amendment was actually in court, in person or .by attorney, and might have had notice of such amendment.” So •in this case the amended petition setting up the mortgage was an .amendment of which the defendant ought to have had notice, because it was an additional demand against him, incident, in one sense, (it is true,) to the notes sued on, hut which entitled the plaintiff to a judgment against the defendant much more onerous .than that which was claimed by the original petition. There ought, therefore, to have been service of the amended petition.

But the want of service is cured by a recital in the judgment which shows that the defendant was in court either in person or by attorney. The decree recites that “ the plaintiff agrees with the defendant to stay said order of sale and execution until the .first of February next.”

The order of sale referred to in this part of the decree is the order for the sale .of the mortgaged property. In the case of Hutchinson and wife v. Owen, 20 Tex., 289, it was held that although the judgment was in the usual form of a judgment by default, a recital that the parties agreed to a stay of execution showed sufficiently that they were in court and recognized the proceedings. The case of Hutchinson v. Owen is precisely in point upon the question now before us, and that case has been ■recognized as establishing a correct rule in a later case which is not jet reported.

The judgment entered by mistake on a former day of this term will be set aside, and the judgment of the District Court affirmed with damages.

Affirmed with damages.