Commercial Credit Co. v. Wilson

• Decision Date: 28 February 1920
• Docket Number: (No. 8328.)
• Citation: 219 S.W. 298
• Parties: COMMERCIAL CREDIT CO. v. WILSON.
• Court: Texas Court of Appeals

219 S.W. 298

COMMERCIAL CREDIT CO. v. WILSON.

(No. 8328.)

Court of Civil Appeals of Texas. Dallas.

February 28, 1920.

Error from Collin County Court; R. L. Moulden, Judge.

Suit by the Commercial Credit Company against John K. Wilson. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Meador, Kugle & Hagebush, of Dallas, for plaintiff in error.

Abernathy & Smith, of McKinney, for defendant in error.

TALBOT, J.

This suit was instituted in the county court of Collin County, by plaintiff in error, Commercial Credit Company, on November 15, 1916, against defendant in error, John K. Wilson. It was substantially alleged in the petition that on March 29, 1916, the defendant, John K. Wilson, made, executed, and delivered to Partin Manufacturing Company six certain promissory notes in the principal sum of $150 each, signed by him and made payable to the order of the Partin Manufacturing Company; that plaintiff before the maturity of any of said notes, and without notice of any defenses that defendant might have, and in due course of trade, purchased said notes from Partin Manufacturing Company for a valuable consideration; and that defendant refused to pay said notes or any of them. Plaintiff prayed judgment for the amount of the notes, interest, and costs. On December 16, 1918, defendant filed his first amended original answer pleading that the notes declared on were not his act and deed, but constituted only a part of a contract to which they were attached, failure of consideration and fraud, and prayed that plaintiff take nothing by its suit; that said notes be canceled and held for naught; and that defendant recover his costs. On the same day, to wit, December 16, 1918, without the knowledge of plaintiff that the case was set for trial that day, the defendant announced ready for trial, and the case was tried before the court; neither the plaintiff nor its counsel being present. There was a verdict and judgment for the defendant. On May 17, 1919, plaintiff in error filed its petition for writ of error, executed and filed a writ of error bond in terms of law, and brings this case here on appeal. There was no motion for a new trial, nor assignments of error filed herein, but the plaintiff in error presents and urges what are asserted to be fundamental errors for which the judgment of the court below should be reversed and the cause remanded.

The first contention is that —

"When the plaintiff fails to appear and prosecute, the only judgment proper, when he is without notice of a cross-action, is a dismissal without prejudice for want of prosecution, and not that plaintiff should not recover nor that defendant should have a judgment."

We think the error pointed out is fundamental and that the judgment must be reversed. The record discloses that the defendant in error's answer to the plaintiff in error's petition was filed on the 16th day of December, 1918, during the first term of the court at which he was cited to appear, and that on the same day judgment was rendered in favor of the defendant in error. This judgment recites that the case was regularly reached on the call of the docket, and, no jury having been demanded, all matters of facts, as well as of law, were submitted to the court; that the defendant (John K. Wilson) appeared in person and by attorney; that the plaintiff (Commercial Credit Company) failed to appear in person or by attorney; that the defendant announced ready for trial, and the court having heard the pleadings of the plaintiff, and the pleadings of the defendant, and having heard the evidence adduced in the case, the court finds that the six notes sued...