Carver Bros. v. Merrett

• Decision Date: 26 March 1913
• Citation: 155 S.W. 633
• Parties: CARVER BROS. v. MERRETT et al.
• Court: Texas Court of Appeals

155 S.W. 633

CARVER BROS. v. MERRETT et al.

Court of Civil Appeals of Texas. Texarkana.

March 26, 1913.

On Motion for Rehearing, April 3, 1913.

Appeal from District Court, Titus County; P. A. Turner, Judge.

Action by John Merrett against Carver Bros. and the Merchants' & Planters' National Bank of Mt. Pleasant. Judgment for plaintiff Merrett and for the bank against Carver Bros., and they appeal. Reversed and remanded for new trial.

S. P. Pounders and J. M. Burford, both of Mt. Pleasant, for appellants. L. E. Keeney and T. C. Hutchings, both of Mt. Pleasant, and Mahaffey, Thomas & Hughes, of Texarkana, for appellees.

HODGES, J.

On March 5, 1912, the appellees filed this suit against the appellants, Carver Bros., a partnership firm consisting of W. I. Carver, Walter Carver, and Jack Carver, and against the Merchants' & Planters' National Bank of Mt. Pleasant, seeking a judgment for the sum of $1,773.39 claimed to be due for money loaned or advanced to Carver Bros. by the bank. The petition alleged that in September, 1911, a contract was entered into between Carver Bros. and the bank, by which the latter agreed to pay for cotton purchased by Carver Bros. with tickets attached, and that Carver Bros. agreed to repay such advances, together with 10 per cent. interest per annum and other necessary charges; that during that season the bank advanced to Carver Bros., in the manner specified $67,419.77, of which sum Carver Bros. had repaid $65,646.38, leaving a balance of $1,773.39 still due the bank. An itemized statement of the number of bales of cotton purchased and the amounts advanced thereon, together with the credits to which Carver Bros. were entitled, was attached as an exhibit to the petition. It is also alleged that for a valuable consideration this account against Carver Bros. was transferred by the bank to the appellee John Merrett, and its payment guaranteed. On the 19th day of March, 1912, appellants appear to have filed a plea of privilege, claiming the right to be sued in the county of their residence. On the 23d of the same month appellee filed an amended original petition, alleging, in addition to the facts before stated, the following: "Plaintiff further shows to the court that heretofore, on the 29th day of November, 1911, said defendant bank held as collateral and as a pledge to secure the payment of the above account as shown by said exhibit 44 bales of lint cotton, weighing 500 pounds each of the value of 9 cents per pound and of the value of $45 per bale and of the total value of $1,895, that said 44 bales of cotton was represented by cotton tickets issued by Isham Hammonds and L. E. Culver, said cotton being the property of said Carver Bros. and having been paid for by said defendant bank, and being held by said Hammonds and Culver for said Carver Bros., subject to defendant bank's rights by virtue of said pledge, said cotton tickets being in the possession of said bank and being held by it as collateral to secure said debt. Plaintiff says that on the 29th day of November, 1911, in Titus county, Tex., said Carver Bros. by and through their agent and representative, J. W. Pierce, came into possession of said 44 cotton tickets, 44 bales of cotton, which tickets were the representatives of said 44 bales of cotton, and that said J. W. Pierce at the time he came into possession of said cotton tickets and cotton was acting in the scope and apparent scope of his authority, and acting in the course of his employment, and after getting possession of said tickets and cotton appropriated and converted said cotton and cotton tickets, to said bank's damage in the [sum of] $1,773.39; said cotton tickets and cotton being converted by the said J. W. Pierce as aforesaid in Titus county, Tex., and without the consent of said bank." On the same date appellants filed an amended plea of privilege, alleging that their residence was in Collin county, Tex., and charging that the transfer of the account sued on was fraudulent and simulated for the sole purpose of conferring jurisdiction over the persons of the appellants on the district court of Titus county. The appellee replied by a proper denial. The issue presented by the plea of privilege appears to have been submitted to the court on the same date and overruled. Appellants then filed an answer containing general and special exceptions and a general denial, and specially pleading that they had been damaged by the loss of a number of the tickets and cotton corresponding thereto which had been placed in the custody of the bank, and asked for a judgment over against the bank for $121.61. Thereafter, on the 30th of the same month, the case on its merits was submitted to the court, and a judgment was rendered for the appellee for the full amount sued for, and in favor of the bank against Carver Bros. for the same sum.

It is claimed in this appeal that the court erred in refusing to sustain the appellants' plea of privilege because the evidence shows that the transfer to the appellee from the bank was simulated and fraudulent. It may be conceded that this contention is correct.

Still there would exist no good reason, as the record now stands, for reversing this cause upon that ground. By filing their cross-action and seeking a judgment against their codefendant for more than the sum sued for the appellants waived whatever legal rights had been claimed in the plea of privilege. Ramsey v. Cook, 151 S. W. 346; Thorndale v. Evens & Lee, 146 S. W. 1053; Kolp v. Shrader, 131 S. W. 860.

Before going into a trial upon the merits, appellants had filed an application for a continuance of the cause on account of the absence of several witnesses; and it is contended that the court erred in refusing to grant that continuance. The assignment as it appears in the appellants' brief is as follows: "The court erred in overruling defendants' motion for a continuance until the next term of this court for the want of the testimony of J. M. Badt and J. W. Pierce and other witnesses named in their application, as is complained of in the third paragraph of their motion for a new trial, and as is fully set out in their bill of exception No. 3." The proposition following that assignment is: "An application for a continuance to procure witnesses to disprove an allegation made in the amended petition for the first time on the day of trial should be granted as a matter of law." We are not required to search the record and ascertain all the witnesses mentioned in the motion for a continuance, or what the appellants expected to prove by them. We shall only consider the motion with reference to the two witnesses whose names are designated in the assignment of error—J. M. Badt and J. W. Pierce.

The motion was not in the statutory form required for the first application for a continuance. The affidavit failed to state that due diligence had been used to procure the testimony of the absent witnesses. When this averment is omitted from the affidavit, the granting of the motion will be left to the discretion of the trial judge, and his refusal will not be revised except when it...