Van Bibber v. Geer , 12 Tex. 15 ( 1854 )

Wheeler, J.

It may well be questioned whether the petition presented a case which would have entitled the plaintiff in error to intervene, if it had been presented in proper time, and with due notice to the plaintiff. The note had been transferred to Dixon in part payment for the negro, as money; and though, by reason of the fraudulent representation in the sale, he may have been entitled to rescind the contract and recover back the price paid, it is questionable whether this note could have been recovered back specifically as a chattle. There is no averment that Dixon was insolvent and unable to respond in damages, that his residence was unknown, or that he had not property in that State, subject to the petitioner’s demand. It would seem that the remedy of the petitioner was by suit against Dixon to recover back the price paid for the negro.

If, upon the facts stated in his petition, the party was entitled to intervene in this suit, and recover upon the note, it manifestly was incumbent on him to have made Dixon a party to the suit. It was proposed to bring his rights in litigation, and an opportunity should have been afforded him of making his defence.

But it will suffice, to dispose of the case, that the time and manner of presenting the petition did not entitle the party to be heard. The petition was filed but the day before the trial, and does not appear to have been brought to the notice of the Court or the plaintiff until after the cause was called for trial, although the suit had been pending for months, hi or is the omission to present it at an earlier day, and give notice to the plaintiff so as to enable him to be prepared with evidence to maintain his title to the note, in any manner accounted for.

To have entertained the application, under the circumstances, would have operated a surprise and manifest injustice to the plaintiff. The judgment is affirmed.

Judgment affirmed.