Austin v. Citizens' Bank

• Decision Date: 24 October 1928
• Docket Number: (No. 8059.)
• Citation: 10 S.W.2d 227
• Parties: AUSTIN v. CITIZENS' BANK OF ROGERSVILLE.
• Court: Texas Court of Appeals

10 S.W.2d 227

AUSTIN v. CITIZENS' BANK OF ROGERSVILLE.

(No. 8059.)

Court of Civil Appeals of Texas. San Antonio.

October 24, 1928.

Appeal from District Court, Jim Wells County; Hood Boone, Judge.

Suit by the Citizens' Bank of Rogersville against C. H. Austin. Judgment for plaintiff, and defendant appeals. Affirmed.

Lloyd & Lloyd, of Alice, for appellant.

Perkins & Floyd, of Alice, for appellee.

FLY, C. J.

This suit was instituted by appellee, the Citizens' Bank of Rogersville, Tenn., against appellant to recover on a note for $5,000, executed and delivered by appellant to appellee, and for interest and attorney's fees. After application for continuance and plea in abatement by appellant had been overruled, appellant filed general demurrer and special exceptions, general denial, and special answers, and also filed a crossaction which was dismissed by the court. The cause was tried without a jury, and judgment rendered in favor of appellee for the sum of $1,944.75 and $194.47, amounting in the aggregate to $2,139.22.

The note was executed by the Chevrolet Company and C. H. Austin as principals and was indorsed by O. A. Moers, F. Y. Kitzmiller, and C. H. Austin. It was alleged in the petition that appellant was doing business under the name of Austin Chevrolet Company and that the note sued on was his note.

A continuance of the cause was sought on the grounds that he desired to show that the note sued on was secured by a mortgage on valuable property in Tennessee; that the indorsers O. A. Moers and F. Y. Kitzmiller had assumed full and entire responsibility on said note; that appellant desired to obtain a copy of the mortgage and had written to the official recorder to obtain the same, but he failed to send such copy; that he desired to show that the two indorsers of the note hereinbefore named had received the property and assumed payment of the note, and that it was necessary for appellant to take the deposition of a telegraph operator who received, by telegraph, an offer by Moers to take the property and assume payment of the debt, which offer was accepted by appellant; that appellant had lost copies of the telegram; and that he seeks an order of the court to require the operator to send copies of the telegram, and also desired to take the deposition of Moers on the same subject. The motion for continuance was properly denied. If all the transactions alleged to have occurred between appellant and the indorsers of the note had been proved, such proof would not have been an answer to the demand which was evidenced by the promissory note. If appellant was the principal on the note, as appears from the note, he was liable on it, and he would have no cause of action over against the indorsers, and it was immaterial that Kitzmiller and his wife had given a mortgage on real property to secure the debt sued on among others. The deed of trust, which is made a part of the answer, shows that Kitzmiller was an indorser of the note sued on, and describes it as having been given by the Austin Chevrolet Company, and states that he was indorser thereon. Appellant stated in the motion to continue the case in order that he might show that, in consideration of the property on which the mortgage had been given by Kitzmiller and Moers to secure the debt, that they had agreed to assume the debt to appellee, but none of the testimony mentioned in the motion tended in the least to show those facts. The motion was too...