231 S.W. 861 (Tex.Civ.App. 1921), 6560, Indemnity Co. of America v. Mahaffey

Docket Nº:6560.
Citation:231 S.W. 861
Opinion Judge:SMITH, J.
Party Name:INDEMNITY CO. OF AMERICA v. MAHAFFEY.
Attorney:Bradley, Burns, Christian & Bradley, of Fort Worth, for plaintiff in error. C. F. Clark, of Fort Worth, for defendant in error.
Case Date:May 11, 1921
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 861

231 S.W. 861 (Tex.Civ.App. 1921)

INDEMNITY CO. OF AMERICA

v.

MAHAFFEY.

No. 6560.

Court of Civil Appeals of Texas, San Antonio.

May 11, 1921

Rehearing Denied June 8, 1921.

Error from Tarrant County Court; W. P. Walker, Judge.

Action by H. L. Mahaffey against the Indemnity Company of America and another. Judgment by default against the Indemnity Company after plaintiff had dismissed as to other party, and defendant Indemnity Company brings error. Reversed and remanded.

Bradley, Burns, Christian & Bradley, of Fort Worth, for plaintiff in error.

C. F. Clark, of Fort Worth, for defendant in error.

SMITH, J.

We find among the papers an amicus curiae "suggestion of certain material fatal errors which are apparent upon the record in" this cause, coupled with a motion to dismiss the writ of error because of such errors. The objections pointed out go to the sufficiency of the citation in error and the officer's return thereon. Two of the objections are untenable, while the others are waived by defendant in error, who signed an agreement, on file among the papers here, that plaintiff in error could file the transcript and record in this court, and file its briefs herein at any time before September 3, 1920, and further agreeing that defendant in error might file his briefs any time prior to two weeks before the submission of the cause. The execution of this agreement operated as an appearance in this court by defendant in error; and the motion to dismiss is accordingly overruled. Stephenson v. Chappell, 12 Tex.Civ.App. 296, 33 S.W. 880, 36 S.W. 482.

Mahaffey, plaintiff below, and defendant in error here, alleged that on February 21, 1919, the indemnity company issued a fire and theft policy in the amount of $300 covering a certain Ford automobile; that thereafter, on October 11, 1919, he purchased the car from the then owner; that four days later, on October 15, 1919, the car was stolen and has not been recovered; that when he purchased the car the indemnity policy was in the possession of the Guaranty State Bank of Fort Worth, and that he instructed the bank to have the policy transferred to him, which the bank agreed to do "and led the plaintiff to believe that the * * * bank would have and cause said policy to be transferred to * * * plaintiff, and that plaintiff did believe that the * * * bank would and did have the said policy...

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