Tanberg v. Mullins

SMITH, J. This action was brought by Linnie E. Mullins against C. A. Tanberg and wife, Thea J. Tanberg, to recover the amount of a promissory note executed by the Tanbergs, and to foreclose a mechanic’s lien given by them to secure said note. Upon a trial judgment was rendered as prayed for, including a .personal money judgment against Mrs. Tanberg, conceded to be a married woman. The Tanbergs have prosecuted writ of error. Plaintiffs in error filed no assignments of error in the court below, and prosecute their writ of error upon an unassigned error in which it is contended that the trial court committed fundamental error in rendering a personal money judgment against Mrs. Tanberg, a married woman.. Defendant in error concedes in oral argument that to the extent urged by plaintiffs in error the judgment was erroneous, and fundamentally erroneous, as it is. Red River Nat. Bank v. Ferguson, 109 Tex. 287, 206 S. W. 923. Accordingly, the judgment will be reversed in so far as recovery upon the note in question was decreed against plaintiff in error Mrs. Tanberg, and judgment will be here rendered that defendant in error recover no money judgment against said plaintiff in error. In all other respects the judgment will be affirmed, with the costs of appeal taxed against defendant in error. Defendant in error has filed motion to affirm, with 10 per cent, damages for delay, which motion must be denied. Reversed and rendered in part, and affirmed in part.