Commercial Inv. Co. of Uvalde v. Graves
Decision Date | 10 May 1939 |
Docket Number | No. 10528.,10528. |
Citation | 132 S.W.2d 439 |
Parties | COMMERCIAL INV. CO. OF UVALDE v. GRAVES et al. |
Court | Texas Court of Appeals |
Appeal from District Court, Uvalde County; K. K. Woodley, Judge.
Action on a note and for foreclosure of deed of trust by the Commercial Investment Company of Uvalde, Tex., a corporation, against C. R. Graves and others, wherein the surviving wife and heirs of C. R. Graves were made parties on his death. From a judgment against the surviving wife and heirs for foreclosure of the deed of trust and denying recovery as against J. W. Vanham, plaintiff appeals.
Reversed and rendered.
Ditzler H. Jones and Wm. J. Fuller, Jr., both of Uvalde, for appellant.
Morriss & Morriss and G. B. Fenley, Jr., all of San Antonio, for appellees.
This suit was instituted by Commercial Investment Company of Uvalde, Texas, a private corporation, against C. R. Graves and J. W. Vanham, upon a certain promissory note dated January 12, 1933, for the principal sum of $4,029.18, and for foreclosure of a deed of trust upon certain real estate belonging to C. R. Graves; the deed of trust having been executed by Graves to secure the payment of this note. After the suit was filed C. R. Graves died and his surviving wife and heirs were made parties. J. W. Vanham defended on the ground that he was an accommodation endorser of the note.
The trial was to a jury and only one special issue was submitted, to-wit:
"Do you find from a preponderance of the evidence that J. W. Vanham signed the note in evidence, dated July 12, 1932, at the instance and for the benefit of the Commercial National Bank for the sole purpose of enabling said Bank to use said note as collateral in obtaining a loan from Reconstruction Finance Corporation with the understanding with the Commercial National Bank that said Bank would not hold said J. W. Vanham for payment of said note?"
The answer of the jury was in the affirmative.
By way of explanation, the note sued on was given in renewal of the note dated July 12, 1932, and the Commercial Investment Company, plaintiff below, was a private corporation, organized without banking privileges to liquidate the affairs of the Commercial National Bank, and in taking over all the assets of the Bank came into possession of the note sued on herein.
In keeping with the verdict of the jury, judgment was rendered denying any recovery against J. W. Vanham; the Company was given judgment against the surviving wife and heirs of C. R. Graves for a foreclosure of the deed of trust lien on the real estate described therein.
The Commercial Investment Company has prosecuted this appeal complaining of the failure of the trial court to give it a personal judgment against J. W. Vanham.
Appellant's first assignment of error is as follows:
It is alleged to be based upon assignment of error No. 2, which reads as follows:
An examination of appellant's motion for a new trial discloses that the ground of error presented by this proposition and assignment of error was not presented to the trial court. We therefore cannot consider this proposition or the alleged assignment of error on which it is supposedly based. Amended rules for the Courts of Civil Appeals, No. 24, 99 S.W.2d XXIX; 3 Tex.Jur. 821, § 579; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270: Texas & N. O. Ry. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160; Trapp v. Lampton, Tex.Civ.App., 112 S.W.2d 1112.
Neither is this ground of error based upon fundamental error. Refusal to give an instructed verdict does not present fundamental error. Moore v. Krenex, Tex.Com.App., 39 S.W.2d 828; Meuly v. Miley, Tex.Civ.App., 15 S.W.2d 654; Cox v. Rio Grande Valley Telephone Co., Tex.Civ.App., 13 S.W.2d 918; Warren v. Houston Oil Co., Tex.Com.App., 6 S.W. 2d 341; Ford & Damon v. Flewellen, Tex. Com.App., 276 S.W. 903.
Appellant's second proposition reads as follows:
It will be noted that this proposition refers to appellant's motion for an instructed verdict, but copies in full a motion for judgment non obstante veredicto and follows this by a reference to a bill of exception on pages 56, 57 of the transcript. On these pages of the transcript is found a bill of exceptions complaining of the court's action in overruling appellant's motion for an instructed verdict. No reference is made in this bill of exceptions to the motion for a new trial, which had been filed and overruled several days before this bill of exceptions was approved. The proposition states that it is based upon assignments of error 3 and 4. There is no assignment of error 3 or 4 in the brief, so such reference must be to paragraphs 3 and 4 of appellant's motion for a new trial. Paragraphs 3 and 4 of the motion for a new trial read as follows:
We therefore take it that by this assignment of error appellant intended to contend that there was no evidence to show that the bank agreed not to hold Vanham liable on said note, and that therefore the court should have granted appellant's motion for an instructed verdict.
The evidence shows that the note dated July 12, 1932, was originally...
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