Cruger v. McCracken

• Decision Date: 14 March 1894
• Parties: CRUGER v. McCRACKEN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

26 S.W. 282

CRUGER v. McCRACKEN.¹

Court of Civil Appeals of Texas.

March 14, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by R. H. McCracken against J. P. Cruger. From a judgment for plaintiff, defendant appeals. Affirmed.

Simpson & James and Solon Stewart, for appellant. Upson & Bergstrom, for appellee.

Conclusions of Fact.

NEILL, J.

On the 26th day of March, 1892, the appellant executed and delivered to the appellee the following promissory note: "$10,361.63. San Antonio, Texas, March 26th, 1892. Six months (180 days) after date, without grace, I, we, or either of us promise to pay to the order of R. H. McCracken, at their bank in the city of San Antonio, Texas, ten thousand three hundred and sixty-one 63-100 dollars gold, with interest at the rate of eight per cent. per annum from date, with an attorney's fee of ten per cent. should judicial proceedings be used in collecting, having pledged to the said R. H. McCracken as security for this note, or for any other indebtedness or obligation which may be now or hereafter due or owing to the said R. H. McCracken, and for which ____ may be directly or indirectly bound, with authority to sell the same on the nonperformance of this promise, or nonpayment of any other indebtedness for which the same is pledged, as above stated, in such manner as they, in their discretion, may deem proper, either at public or private sale (with or without notice), and apply the proceeds — all or any portion thereof, at their discretion — to the payment of this note or any other obligation or indebtedness due or owing to them as above stated by J. P. Cruger." The appellee was the owner and holder of the note, and it was due and unpaid when the suit was filed and the judgment appealed from rendered.

Conclusions of Law.

The first assignment of error is as follows: "The court erred in calling this case on the second day of the term, and setting it for trial on the 1st day of December, 1892, in the absence of defendant and his counsel, and then denying defendant a trial by jury, on the ground that defendant had not demanded a jury when the case was so called and set for trial; all of which appears in bill of exception No. 2." Suit was filed on the note upon the 29th of September, 1892, and the term of court to which it was brought began on the 28th day of November, 1892. The appellant had been duly cited, and on the call of the docket on the second day of the term, neither party demanding a jury, the cause was set for trial on December 1, 1892. On that day the appellant filed his answer, demanded a jury, and tendered the fee therefor, which demand was refused by the court, and the cause tried, and judgment rendered for the appellee. The contention of appellant is that he was not required, under the law, in order to have his case tried by a jury, to make demand therefor before the fifth day of the term. The position of the appellee is that the holding of the court that the appellant should have demanded a jury when the docket was called on the second day of the term is correct. "Any party to a civil suit in the district * * * court desiring to have the same tried by...