Barton v. Pochyla

• Decision Date: 07 June 1922
• Docket Number: (No. 6429.)
• Citation: 243 S.W. 785
• Parties: BARTON v. POCHYLA et al.
• Court: Texas Court of Appeals

243 S.W. 785

BARTON v. POCHYLA et al.

(No. 6429.)

Court of Civil Appeals of Texas. Austin.

June 7, 1922.

Appeal from District Court, McLennan County; Jas. P. Alexander, Judge.

Action by Mrs. Annie Barton against Henry F. Pochyla and others. From judgment of dismissal, plaintiff appeals. Affirmed.

Johnston & Hughes, of Waco, for appellant.

Street & Coston, of Waco, and Method Pazdral, of West, for appellees.

Nature and Result of the Case.

BRADY, J.

On January 5, 1921, appellant, in her own behalf and as next friend of her minor daughter, Wilma Sulak, brought suit in the district court of McLennan county against appellees, to set aside a judgment against her, rendered in that court in April, 1919, in favor of Henry F. Pochyla, on a note executed by her and her husband, Adolph Barton, for $850, and foreclosing a vendor's lien on property for which said note was given in part payment. The court sustained a general demurrer to said petition, which action of the court is assigned as error herein.

A district court has authority, under its general equity powers, to set aside a judgment rendered by it at a previous term, and in a proper case it would be its duty to do so. Overton v. Blum, 50 Tex. 417; Robbie v. Upson (Tex. Civ. App.) 153 S. W. 407, 408.

In this, as in all cases where a general demurrer is sustained, in determining the correctness of such ruling, the allegations in the petition must be taken as true. The material allegations in appellant's petition are:

That on or about February 28, 1916, she purchased from appellee, Henry F. Pochyla, for the consideration of $5,340, a house and lot in the town of West, McLennan county, paying therefor by deeding said Pochyla a tract of land and executing her vendor's lien note, in which she was joined by her husband, Adolph Barton, to said Henry F. Pochyla, for $850, for the balance of the purchase money due thereon.

That the land given in exchange for said house and lot was the separate property of herself and her minor daughter, Wilma Sulak, the same having been purchased with money obtained by her in settlement of a judgment against a railway company on account of the death of her former husband, John Sulak, occasioned by the negligence of such railway company. That said judgment was for the sum of $3,333.33, one-third of which was apportioned to her said minor daughter, and two-thirds to her. That said fact was well known to each of the defendants at the time she purchased said house and lot and executed said note. That her present husband, Adolph Barton, refused to join her in this suit.

That on or about February 16, 1917, appellee, Henry F. Pochyla, for a valuable consideration to him paid by his mother, Mrs. Johanna Pochyla, sold and delivered said note to appellee, the said Mrs. Johanna Pochyla, and executed on the back thereof a written transfer of said note, together with the vendor's lien retained to secure its payment, whereby the said Mrs. Johanna Pochyla then became and ever since has remained the owner of said note, and that she had never executed a retransfer of said note or vendor's lien to said Henry F. Pochyla. That appellant paid to said Mrs. Johanna Pochyla all interest due on said note to February 28, 1918.

That in the latter part of 1918, said note then being due, appellant secured the money to pay off said note from a party who agreed to purchase said note and give appellant further time in which to pay same, and that she tendered to Mrs. Pochyla full payment of said note. That Mrs. Pochyla requested her not to allow such other person to take up said note, but to permit her to continue to hold the same, and that she would carry the same for appellant for two or three years, and at the end of such time, if desired, she would accept a renewal of said note, and that appellant acceded to said request.

That thereafter, on March 10, 1919, the said Henry F. Pochyla filed suit on said note in the district court of McLennan county, against appellant and her husband, Adolph Barton, and at the April term, 1919, of said court recovered a judgment by default against appellant and her husband, for principal, interest, and attorney's fees specified in said note and for foreclosure of the vendor's lien on said house and lot.

That thereafter, on April 30, 1919, an order of sale was issued out of said court by virtue of which, on June 3, 1919, the house and lot were sold by the sheriff of McLennan county at public vendue, and were purchased by said Henry F. Pochyla, for the sum of $500, which was credited on said judgment, leaving a balance due thereon of $463.20. That said judgment was a personal judgment against appellant.

The petition of Henry F. Pochyla in the suit hereinbefore referred to is set out in full in appellant's petition. It appears therefrom that Pochyla expressly alleged the execution and delivery of the note to him by defendants, fully describing it and setting out the note in hæc verba. The note as set out in the petition shows that it was payable to Pochyla, and that it was given to him by defendants, in part payment of the property foreclosed upon, and which was conveyed to, Mrs. Annie Barton by Pochyla and his wife. It was also alleged that by reason of the execution and delivery of the note by defendants to Pochyla they became liable and bound, and promised to pay him the amount thereof. There was an express averment that the note was past due and unpaid, and the refusal of the defendants to pay the same.

The judgment expressly recites that the defendants were found to be indebted to Pochyla, and is in the ordinary form of a foreclosure decree. Said note bore interest at the rate of 8 per cent. per annum from date until paid.

Appellant's petition alleges that by reason of the agreement between her and Mrs. Johanna Pochyla, the owner of said note, that the time for the payment thereof was extended for two or three years, and the same was not due when suit was brought, nor when judgment was rendered thereon. That said suit was brought unjustly and fraudulently, for the purpose of defrauding appellant and her minor child out of their said property. That the same consisted of a brick store building on a business lot in the town of West, for which she paid a consideration of $5,340, and at the time said suit was filed and at the time same was sold under said order of sale it was worth the sum of $6,000, and is of the rental value of $50 per month. That she could at any time easily have secured a loan thereon for enough to pay off said note and interest, and would have done so but for the false promises, chicanery, and fraud of the defendants herein.

Appellant tendered into court the amount of principal and interest due on said note, and prayed that it be canceled and delivered to her, and that the deed to Henry F. Pochyla be set aside and held for naught, and that she recover the title of said property for herself and her said minor child.

There are other allegations as to a pretended sale of the property by Henry F. Pochyla to his brother-in-law, Mayo, one of the appellees, and the incumbrance of same by said Mayo, which need not here be stated, for the reason, if appellant is not entitled to have the judgment set aside as against Henry F. Pochyla, she is not entitled to any relief as against the other appellees; and, on the other hand, if the judgment be set aside as to Henry F. Pochyla, the court upon the trial of this cause will adjust the equities as to the other appellees.

Opinion.

The judgment sought to be set aside is assailed here as void, because it was without pleading to support it. The specific claim is that the plaintiff, Pochyla, did not allege that he was the owner of the note. The substantial averments in this relation have been set out in the statement of the case. There was an express averment that the defendants executed and delivered the note to Pochyla, and the copy attached to the petition showed that he was the payee. In connection with the other allegations, we think this was sufficient averment of ownership, as against a general demurrer. In testing a pleading by general demurrer, the rule is too well fortified to require citation of authorities that every reasonable intendment will be indulged in favor of its sufficiency.

In 8 Corpus Juris, p. 886, it is said:

"In an action by the payee against the maker of a note, it is sufficient to allege the execution and delivery of the note to plaintiff, without alleging that he is the owner and holder of the note, since it will be presumed that the payee of a note in possession thereof is the owner"

— citing many authorities, including Bryan v. Bank (Tex. Civ. App.) 174 S. W. 827; Frank v. Brown Hardware Co., 10 Tex. Civ. App. 430, 31 S. W. 64. These cases support the text.

In Rutherford v. Smith, 28 Tex. 322, the Supreme Court held that an allegation that the payee of a note transferred it by indorsement to plaintiff was sufficient to show title in the latter.

Texas Land & Cattle Co. v. Carroll & Iler, 63 Tex. 48, involved the same question, the plaintiffs having failed to specifically allege ownership, but they were the payees named in the instrument. As against a general demurrer, the petition was held good, Justice Stayton saying:

"The instrument being made payable to the appellees, it would not ordinarily be necessary for them to allege that they were the owners of it, and, as the pleadings stood, the court correctly so ruled."

A similar holding was made by this court in German Ins. Co. v. Gibbs (Tex. Civ. App.) 35 S. W. 679, and by the Fort Worth court in House v. Mortgage Co. (Tex. Civ. App.) 38 S. W. 227, citing Cattle Co. v. Carroll, supra.

While there may be expressions in some of the earlier Texas cases to the contrary, we do not think the facts were the same as in the instant case. At all events, we hold, in line with the authorities above cited, that the petition in the original suit was good, as against a general demurrer.

It...