American Nat. Bank v. Petry

• Decision Date: 06 December 1911
• Citation: 141 S.W. 1040
• Parties: AMERICAN NAT. BANK v. PETRY et al.
• Court: Texas Court of Appeals

141 S.W. 1040

AMERICAN NAT. BANK v. PETRY et al.

Court of Civil Appeals of Texas. Austin.

December 6, 1911.

Appeal from Travis County Court; R. E. White, Judge.

Action by H. F. Petry and another against the American National Bank. Judgment for plaintiffs. Defendant appeals. Affirmed.

Hart & Patterson, for appellant.

RICE, J.

This suit was brought by appellees, plaintiffs below, against appellant to recover the sum of $450, alleged to be due and owing them as deputy tax assessors by their principal, Stewart Francis, tax assessor of Travis county; that their said principal gave them an order for their said salaries on the tax collector of Travis county, which was placed by them in the hands of appellant for collection, who, having collected the same, failed to pay the same over to them; that appellant had promised to pay them $450 if they would not resign as deputy tax assessors and would finish the tax rolls of Travis county for the year commencing December 1, 1907, and ending December 1, 1908. Appellant answered by general and special demurrers, general denial, and specially pleaded that Stewart Francis was indebted to it in a large sum, to wit, about $3,000, and that he was indebted to Travis county on excess fees in the sum of $915.35; that Francis gave an order to it on the State Comptroller and tax collector of said county for his warrant as tax assessor, which amounted to $3,523.55; that the warrant was turned over to appellant and collected by it, and was not sufficient to pay the debt due by Francis to appellant and the $915.35 owing by him to Travis county; and that the order given by Francis to appellees was subsequent to the order given by Francis to appellant for his warrant; and it was fully understood that the debt due by Francis to appellant was to be paid before appellees were paid. It likewise set up that the agreement pleaded by plaintiffs was void and of no effect, because the same contravened the statute of frauds in this: That it was a promise to answer for the debt or default of another; and, second, that the same could not be enforced, because made by its vice president, who was unauthorized to make such agreement, if any was ever made, and the same was never ratified thereafter by it. The case was tried by the court without a jury, who rendered judgment for appellees for the amount claimed, less some admitted credits to which appellant was entitled. Conclusions of fact and law were filed by the trial court.

Before entering upon a discussion of the merits of this case, we will dispose of appellees' motion to dismiss the appeal, based on the ground that appellant had failed to file a copy of its brief in the trial court, as required by article 1417 of the Revised Civil Statutes of 1895, and had likewise failed to file its brief in this court until the 22d day of November, 1911, which was just one week prior to the submission hereof, citing in support of their motion rule 39 (67 S. W. xvi); rule 42 (67 S. W. xxvii); R. S. art. 1417; W. U. Tel. Co. v. White, 140 S. W. 125; Wiseman v. Maddox, 135 S. W. 756; S. A. & A. P. Ry. Co. v. Holden, 93 Tex. 211, 54 S. W. 751.

Replying to said motion, appellant filed the affidavit of its counsel J. M. Patterson, Esq., stating: That since the filing of this suit he had had exclusive control and management thereof. That said case was a part of his private business, which he had acquired prior to his forming a partnership with W. D. Hart, Esq., in the practice of law, and that throughout the trial and appeal he alone has given this case attention. Although the firm name has been signed to the papers filed therein, it was his individual business, and his partner, W. D. Hart, Esq., had no part in the case, and knew nothing of it. That he tried said case in person, filed all the pleadings, prepared the appeal, had charge of the filing of the transcript for appellant, the bills of exception, assignments of error, and statement of facts, and that no other attorney had any knowledge of the contents or preparation of said papers, nor any interest or part therein. That he filed the transcript in this case in this court on the 23d day of February, 1911, immediately taking the same out and worked on the brief from time to time until about the middle of September last. That on said date he was engaged in the actual preparation of the brief in this case when he was suddenly stricken with illness, rendering him incapable of finishing same, which illness was of a very serious nature, attacking him on the street, from which he fainted and fell to the sidewalk, striking his head, whereby he was rendered unconscious for several hours. That the physicians who were called in charge pronounced his illness due to overwork, bad health, and rush of blood to the brain, and forbade his working at his profession. That this condition continued for over two months, during which time he was in constant charge of his physician, and that the brief in this case was the first work requiring any mental effort after said stroke, and that the same would have been completed and filed in due time had it not been for said illness and the positive instructions of his physician to the effect that if he attempted to work it would kill him. He further alleged a belief in the merits of his appeal, and suggested that the object of the law would be served by giving appellees a reasonable time within which to reply to his brief, if they desired to do so. This motion was also supported by the affidavit of his physician attached thereto, and he cites in support of the sufficiency thereof Crenshaw v. Hempel, 130 S. W. 731; S. A. & A. P. Ry. Co. v. Holden, 93 Tex. 211, 54 S. W. 751.

Appellees in their motion to dismiss did not request a postponement of the case for an opportunity to answer said brief, but specially stated that they were unwilling for any further delay or postponement of the case, and insisted upon its taking its regular course.

While it is true that article 1417, R. S., and rule 39, supra, required the appellant to file a copy of his brief in the trial court...