Danner v. Walker-Smith Co.

• Decision Date: 24 April 1912
• Citation: 154 S.W. 295
• Parties: DANNER et al. v. WALKER-SMITH CO. et al.
• Court: Texas Court of Appeals

154 S.W. 295

DANNER et al. v. WALKER-SMITH CO. et al.

Court of Civil Appeals of Texas. Austin.

April 24, 1912.

Appellees' Motion for Rehearing, June 26, 1912.

Appellants' Motion for Rehearing, November 6, 1912.

Further Rehearing Denied February 26, 1913.

Appeal from District Court, Brown County; John W. Goodwin, Judge.

Action by the Walker-Smith Company and others against A. J. Danner and others. Judgment for plaintiffs, and defendants appeal. Affirmed in part, and in part reversed and remanded.

Walker-Smith Company brought this suit to the May term, 1909, of the district court of Brown county against the Robert Lee Mercantile Company to recover on three promissory notes for the sum of $2,500 each; and against A. J. Danner and others, including E. E. Millican, on an alleged contract of guaranty, and by amendment against Bat Austin, D. C. Landers, and C. H. Millican to foreclose lien on lands attached as the property of Eli Austin, A. K. Landers, and E. E. Millican, and also to foreclose attachment lien as to E. E. Millican. The defendants Robert Lee Mercantile Company and M. E. Trimble filed no answers. The other defendants, except E. E. Millican, answered to the May term, 1909, of said court. Those who were sued on said alleged contract of guaranty pleaded non est factum. On June 23 to 26, 1909, the case was tried before a jury. The court, among other things, instructed the jury as follows: "You will find for the plaintiff and against said defendants, or such of them, if any, as you may find executed said guaranty. In this connection you are instructed that defendants E. E. Millican and M. E. Trimble do not deny the execution of the guaranty, and it will be your duty to render a verdict in favor of plaintiffs and against said defendants." The jury returned a verdict against the Mercantile Company for the debt sued on, and also as follows: "We find in favor of defendants E. H. Winans, M. B. Patterson, Eli Austin, A. K. Landers, H. W. Walton, A. J. Danner, W. B. Harrison, John J. Fry, and J. A. Jenkins. We also find in favor of plaintiff and against defendants E. E. Millican and M. E. Trimble for the sum of $7,288.71 on the contract of guaranty." Judgment was entered on this verdict against the Mercantile Company, E. E. Millican, and M. E. Trimble for the amount found by the jury and also against E. E. Millican and C. H. Millican for foreclosure of attachment lien on land described in said judgment. Walker-Smith Company filed a motion for a new trial, and asked that the judgment in favor of the defendants above named, in whose favor the jury had returned said verdict be set aside. On July 3d, a day of said May term, 1909, the court granted said motion and entered judgment that the "verdict of the jury on the 26th day of June, 1909, returned and filed in this case be and the same is hereby, by the court, as to defendants E. H. Winans, M. B. Patterson, Eli Austin, A. K. Landers, H. W. Walton, A. J. Danner, W. B. Harrison, John J. Fry, and J. A. Jenkins be and the same is hereby set aside, and shall hereafter be held for naught; and as to each and all of said defendants plaintiff Walker-Smith Company is granted a new trial, and this case stands for trial in its order at the next term of this court." At the next term of the court on January 17, 1910, the defendant E. E. Millican filed his answer, pleading, among other things, non est factum to said guaranty contract. June 18, 1910, said Millican filed a motion to set aside judgment by default against him. There is nothing in the record to show that any action was taken on this motion. On the same day that this motion was filed, all of the defendants who were alleged to have signed said guaranty, including E. E. Millican, filed a written motion for continuance on account of the absence of material witnesses, and said motion was granted and the case was continued. At the succeeding term of the court (May term, 1910) this case was again tried before a jury. The court, among other things, instructed the jury as follows: "There is no issue in this case between plaintiff and the Robert Lee Mercantile Company, or between plaintiff and M. E. Trimble. The contract or issue in this case is between plaintiff Walker-Smith Company and A. K. Landers, H. W. Walton, A. J. Danner, W. B. Harrison, John J. Fry, J. A. Jenkins, E. E. Millican, E. H. Winans W. B. Patterson, and Eli Austin on the guaranty contract, and grows out of the pleas of the last-named defendants denying the execution of said guaranty." They were then instructed to find against such of said defendants, if any, who signed said contract; and also that, if they found against E. E. Millican, to find for foreclosure of attachment lien as against both E. E. and C. H. Millican. The jury were instructed to return a verdict in favor of Bat Austin and C. C. Landers. The jury being unable to agree, there was a mistrial (May, 1910). The record does not show what was done with the case at the December term, 1910.

On June 5, 1911, a day of the May term, 1911, the plaintiff filed a motion to strike out the answer of E. E. Millican and his wife, C. H. Millican, "because it appears from the record of this court both and each of said parties were found and adjudged to have made default herein, and interlocutory judgment by default was entered by this court against both and each of them, which is still in full force and effect." Upon this motion, on a day of the May term, 1911, the court entered the following judgment, omitting formal part: "On the 5th day of June, A. D. 1911, was heard and considered the motion of defendant E. E. Millican to set aside the judgment by default heretofore at the May term, A. D. 1909, of this court, on to wit, the 23d day of June, A. D. 1909, rendered and entered in this cause against him the said E. E. Millican, as well as the motion of Walker-Smith Company to strike out the answer of defendant E. E. Millican filed in this case since judgment by default herein was rendered against him, as aforesaid. And, the court having heard both said motions and the argument of counsel therein, it is by the court considered, ordered, and adjudged that the exceptions of plaintiff to the motion of defendant E. E. Millican should be and the same are hereby by the court sustained; and defendant, said E. E. Millican having declined to amend, and elected to stand on his said motion, it is further by the court considered, ordered, and adjudged that said motion should be, and the same is hereby, by the court dismissed, to which action and ruling of the court defendant E. E. Millican then and there in open court excepted. And it is further by the court considered, ordered, and adjudged that the motion of plaintiff Walker-Smith Company to strike out the said answer of defendant said E. E. Millican be, and the same is hereby by the court, granted to the extent only of striking out the plea of non est factum in said answer contained. And it is therefore by the court considered, ordered, and adjudged that the said plea of non est factum in said answer be and the same is hereby by the court stricken out and from the files of this court, to which last ruling of the court defendant E. E. Millican then and there in open court excepted."

On June 10, 1911, the case was submitted to the jury on peremptory instructions and on special issues.

(1) Peremptory instructions against the Mercantile Company on the notes. Special issues Nos. 3, 4, 5, 6, 7, 8, 9, 10, and 11 submitted the issues separately as to whether the defendants Walton, Danner, Harrison, Fry, Jenkins, Winans, Patterson, and Eli Austin signed the guaranty contract.

No. 13: "You will find that M. E. Trimble signed the guaranty contract sued upon."

No. 14: "You will find that E. E. Millican signed his name to the contract of guaranty sued upon."

No. 15: "You will return a verdict in favor of Bat Austin and D. C. Landers."

No. 16: "You will return a verdict in favor of plaintiff and against C. H. Millican, and foreclose against E. E. Millican and C. H. Millican, plaintiff's attachment lien," describing the land levied upon as the property of E. E. Millican.

The jury found that the parties mentioned in special issues Nos. 3, 4, 5, 6, 7, 8, 10, and 11 each signed his name to the guaranty contract sued on. In answer to special issue No. 9 they found that E. H. Winans did not sign his name to said contract. As to the defendants E. E. Millican, C. H. Millican, Bat Austin, and D. C. Landers, the jury found as instructed by the court. Judgment was rendered in accordance with this verdict. On June 15, 1911, E. E. Millican filed an amended motion in lieu of his original motion filed on June 18, 1910, to set aside and vacate the judgment rendered herein against him on June 23, 1909. Plaintiff resisted this motion upon exceptions and upon allegations of fact. E. E. Millican filed an answer to plaintiff's contest of said motion, wherein he alleged, among other things, that no judgment was ever entered against him, except the one upon the verdict of the jury on the 26th day of June, 1909, which was set aside by the court. Plaintiff's exceptions to E. E. Millican's motion to set aside the judgment by default against him were sustained and said motion was stricken out, to which action of the court the said Millican excepted, and preserved a record as to same by bill of exceptions. The defendants Landers, Harrison, E. E. Millican, Walton, Danner, Eli Austin, Fry, Jenkins, and Patterson filed their motion for a new trial, which was overruled, and they have perfected their appeal to this court.

W. A. Anderson, of San Angelo, S. B. Kemp, and Snodgrass & Dibrell, of Coleman, for appellants. Harrison & Wayman, of Brownwood, for appellees.

JENKINS, J. (after stating the facts as above).

1. Appellees have filed a motion to strike out appellants' brief, alleging as grounds for said motion that the same was not filed in time for them to reply to the same. Without going into all...