Blackwell v. Farmers' & Merchants' Nat. Bank

• Decision Date: 27 June 1903
• Citation: 76 S.W. 454
• Parties: BLACKWELL v. FARMERS' & MERCHANTS' NAT. BANK et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

76 S.W. 454

BLACKWELL v. FARMERS' & MERCHANTS' NAT. BANK et al.^*

Court of Civil Appeals of Texas.

June 27, 1903.

Appeal from District Court, Johnson County; Wm. Poindexter, Judge.

Consolidated actions by the Farmers' & Merchants' National Bank against B. L. Durham and another, and by B. L. Durham against J. E. Blackwell. There were judgments for both plaintiffs, and defendant Blackwell appeals from the judgment in favor of Durham. Affirmed.

Ramsey & Odell and Brown & Bledsoe, for appellant. S. C. Padelford, J. M. Moore, and D. W. Odell, for appellees.

RAINEY, C. J.

This is a consolidation of two suits brought in the district court of Johnson county. One was brought by the Farmers' & Merchants' National Bank against B. L. Durham and J. E. Blackwell to recover on two notes for $500 each, executed to the bank by said Durham and Blackwell. The other suit was brought by Durham against Blackwell to settle a difference between them which grew out of a partnership which had theretofore existed between them. These suits were consolidated. No issue was raised by Durham and Blackwell as to their liability to the bank, and judgment was accordingly rendered for the bank against them. When the suits were consolidated, Durham and Blackwell separately filed cross-bills, each claiming that in the dissolution of the partnership the other had assumed the payment of the notes sued on by the bank, as well as a number of others that had been executed by them to the bank. Durham also alleged that Blackwell, in consideration of assuming the payment of said indebtedness to the bank, had, on the dissolution of the partnership, received the larger portion of the drugs, etc., then owned by said firm, out of which the said Blackwell agreed to pay said notes, and that thereby a lien was created on said merchandise so received to secure the payment of said indebtedness. Blackwell further alleged that the excess of stock received by him was in consideration of a note for $2,380, due by Durham to him. The evidence on the issues raised between these two parties was conflicting, and, the jury having rendered a verdict in favor of Durham, we conclude that the allegations of Durham's cross-bill are true. Blackwell alone appeals.

The first assignment of error raises the question of the qualification of the trial judge. Hon. Wm. Poindexter, to try the case. The ground of disqualification urged is that said trial judge had been of counsel for Durham and Blackwell in a matter involving the validity of the $2,380 note involved in this controversy between Blackwell and Durham. The facts show that in 1888 the firm of Poindexter & Padelford, the said trial judge then being a member thereof, was employed by said Durham to prepare a deed of trust for the benefit of his creditors, said Blackwell being one of said creditors, and a beneficiary thereunder, his claim being said note for $2,380. In said deed of trust the National Bank of Cleburne was made first preferred creditor, said Blackwell being second preferred creditor. Other creditors brought suit in the district court of Dallas county to have the property covered by said deed of trust and the proceeds thereof applied to their debts, instead of to the debts of the National Bank of Cleburne and J. E. Blackwell. It was there alleged that said two debts were fictitious, etc. The said law firm of Poindexter & Padelford filed answers in said case for said Durham and said Blackwell, wherein it was asserted that said claim was a valid and subsisting claim, etc. The said firm, as counsel, crossed interrogatories that had been propounded to said Durham and said Blackwell. The facts further show that said firm of Poindexter & Padelford appeared in the employ of E. T. Kelley, the trustee, and that there was no personal appointment made by J. E. Blackwell, but that both Durham and Blackwell consulted with S. C. Padelford, a partner of the firm of Poindexter & Padelford, but no consultation was ever had with said Wm. Poindexter pertaining to said matter; that he personally did nothing in connection with the case, and had no personal knowledge of the...