Buttrill v. Occidental Life Ins. Co.

• Decision Date: 05 December 1931
• Docket Number: No. 10856.,10856.
• Citation: 45 S.W.2d 636
• Parties: BUTTRILL et al. v. OCCIDENTAL LIFE INS. CO.
• Court: Texas Court of Appeals

45 S.W.2d 636

BUTTRILL et al. v. OCCIDENTAL LIFE INS. CO.

No. 10856.

Court of Civil Appeals of Texas. Dallas.

December 5, 1931.

Rehearing Denied January 23, 1932.

Error from District Court, Dallas County; Kenneth Foree, Judge.

Action by the Occidental Life Insurance Company against A. B. Buttrill and others. From final judgment entered on motion of plaintiff, which was subsequently corrected on plaintiff's motion, defendants bring error.

Reversed and remanded.

See, also, 31 S.W.(2d) 833.

J. Cleo Thompson, Chas. F. Umphress, and Clint & Eades, all of Dallas, and W. I. Gamewell, of Canyon, for plaintiffs in error.

Read, Lowrance & Bates, of Dallas, for defendant in error.

VAUGHAN, J.

The parties to this appeal will be designated as follows: Plaintiff in error A. B. Buttrill, as Buttrill, plaintiffs in error A. T. Sheppler, Wesley B. Young, L. O. Turner, and Sam L. Sanders, as surety defendants, and defendant in error, Occidental Life Insurance Company, a private corporation, as plaintiff.

Plaintiff instituted this suit in the court below against Buttrill and surety defendants, alleging that said Buttrill executed, on April 7, 1925, two separate bonds payable to plaintiff as follows: One for $1,000 and one for $1,500, and that said Sheppler and Young became sureties and signed as such said $1,500 bond, and that said Turner and Sanders became sureties and signed as such said $1,000 bond, which bonds secured the payment of certain indebtedness which Buttrill, after the date of said bonds, might become obligated to pay plaintiff; that after the execution of said bonds Buttrill became indebted to plaintiff in a large sum of money, evidenced by his written obligations and promises to pay as follows:

"One dated December 8, 1925, promising to pay Occidental Life Insurance Company the sum of $146.50, upon which said defendant paid and received credits in the total sum of $21.13; another obligation dated December 10, 1925, signed by A. B. Buttrill, promising to pay the plaintiff the sum of $30.00; another obligation signed by said defendant, promising to pay to F. B. Marshall for the use and benefit of the plaintiff, dated March 26, 1926, for the sum of $65.60; another obligation dated April 5, 1926 for $9.16, signed by the defendant A. B. Buttrill; and a promissory note signed by A. B. Buttrill, dated August 29, 1925, promising to pay to the order of F. B. Marshall, Stage Agent for plaintiff, and for the use and benefit of plaintiff, the sum of $1,137.00, with interest at the rate of ten per cent per annum from date, and providing for ten per cent attorneys fee if placed in the hands of attorneys for collection. By said written obligations the defendant A. B. Buttrill became and is now indebted to the plaintiff for the several sums stated, with interest on each of the first four items at the rate of six per cent from the date of each obligation, and on the promissory note last mentioned, interest at the rate of ten per cent from its date, with ten per cent attorneys fee.

"By signing the bonds aforesaid, each of the other defendants bound and obligated themselves to pay the indebtedness listed above, all of which grew out of the dealings of the defendant A. B. Buttrill with the plaintiff as its agent, and by said bond the other defendants became obligated to pay said sums with ten per cent of said amount as an attorneys fee upon the default of the said A. B. Buttrill in paying same.

"The said A. B. Buttrill has defaulted in the payment of said obligations, and though demand has frequently been made on him for such payment he has failed and refused * * *."

For a proper understanding of the questions presented by this appeal for determination, it is necessary to state quite at length the proceedings had leading up to and including the judgment appealed from.

On October 1, 1929, judgment by default was rendered and entered against Buttrill with respect to the recovery of the several sums of money sued for. The surety defendants, prior to that date, had filed an answer consisting of a general demurrer and general denial. On October 11, 1929, this cause, having been placed on the assignment of cases for trial for that date, was called for trial. Said surety defendants failing to appear, final judgment was rendered against said Buttrill and surety defendants; the judgment by default against Buttrill being brought forward therein in favor of plaintiff for the amount sued for, being the aggregate sum, principal and interest due on the above-described five notes. On October 12, 1929, by agreement of the parties, not including Buttrill, the following order was entered, viz.: "By agreement of the parties, the judgment rendered October 11, 1929, be set aside as to the defendants, Sheppler, Young, Turner and Sanders, without prejudice to the defendants on account of the judgment against A. B. Buttrill, and upon agreement of both parties, to waive the jury." On October 21, 1929, Buttrill filed a motion for a new trial, and on November 9, 1929, he filed what is termed a "supplementary motion" to the one filed October 21, 1929. On October 9, 1929, Buttrill filed his original answer, consisting of a general demurrer, general denial, plea of payments, and the four years' statute of limitation. On November 9, 1929, the court overruled Buttrill's original and supplemental motions for a new trial.

On November 13, 1929, surety defendants filed their first amended original answer, consisting of general denial statute of limitation of two and four years, that the execution of the bonds sued upon was obtained by and through fraud practiced upon them by plaintiff, and special pleas alleging facts to the effect that the notes sued upon were executed only on consideration of debts that existed prior to the execution of the bonds sued upon and not for any sum or sums of money that accrued thereafter "out of the dealings of the defendant A. B. Buttrill with the plaintiff or its agents."

On November 14, 1929, Buttrill applied for and obtained an order placing this cause upon the jury docket; the fee of $5, being paid by attorneys representing surety defendants.

On November 26, 1929, plaintiff filed its motion to have entered nunc pro tunc as of date October 11, 1929, a final judgment in its favor against Buttrill and surety defendants, of which motion the following is material to be considered in disposing of this appeal, viz.:

"On October 12, 1929, counsel for plaintiff was called to the 14th District Court room, and found there Judge Chas. F. Clint, one of the counsel for said defendants, and said counsel for defendants without filing a motion for new trial, requested counsel for plaintiff to agree that the judgment rendered on October 11, 1929, might be set aside as to the defendants Sheppler, Young, Turner and Sanders, and after some considerable discussion counsel for plaintiff agreed that the judgment of October 11th might be set aside, if counsel for defendants would agree to waive a jury and grant a speedy trial in the case, and counsel for defendants agreed to file an answer for his clients within a week from October 12th, and to waive a jury and try the case when it was next set on the non-jury assignment about five weeks from October 12th, and thereupon a stipulation and agreement was entered into by and between counsel for plaintiff and counsel for said defendants, and was entered upon the trial docket of said Court as follows: `By agreement of the parties the judgment rendered October 11, 1929 be set aside as to the defendants Sheppler, Young, Turner and Sanders without prejudice to the defense of said defendants on account of the judgment against A. B. Buttrill, and upon agreement of both parties waive a jury.' * * *

"Plaintiff says that it entered into the stipulation of October 12th only upon the condition that the parties waive a jury and try the case at an early date and avoid the indefinite delay that might be caused by placing the case on the jury docket, and this was a condition of the agreement made on October 12th for setting aside the judgment entered on October 11th, and plaintiff charges that the defendants Sheppler, Young, Turner and Sanders, and their counsel have violated said agreement by representing A. B. Buttrill, and calling for a jury in his name, and paying the jury fee for him, and that this was done for their own benefit and advantage and not for the benefit and advantage of the said A. B. Buttrill. Because the plaintiff's cause of action, as stated in its original petition is based on liquidated demands, and judgment by default having been taken against the defendant A. B. Buttrill, he is not entitled to have a jury trial, but it is the duty of the court to determine from the obligations sued upon the amount of the indebtedness of the said A. B. Buttrill to the plaintiff.

"Wherefore Plaintiff says that it is no longer bound by the stipulation made in open court and entered on the trial docket on October 12th."

Surety defendants resisted the granting of said motion to enter judgment nunc pro tunc on the grounds, viz.:

"That this court is without jurisdiction to hear or determine said motion or to grant the relief prayed for therein and they now here demur generally to said motion and of this pray judgment of the court.

"These defendants say that the judgment heretofore rendered against them was legally set aside and held for naught, and said cause legally placed upon the jury docket and, therefore, this court is without authority to hear or determine said motion or to grant the relief prayed for.

"These defendants further say that said motion should not be granted or considered because they have a good and meritorious defense as set forth and alleged in their First Amended Original Answer filed in said cause."

Said motion was granted November 30, 1929, on and solely perforce of the grounds therein alleged, and judgment entered on that date as of October 11, 1929, in favor of plainti...