O'Donnell v. Chambers

• Decision Date: 03 January 1914
• Parties: O'DONNELL v. CHAMBERS.
• Court: Texas Court of Appeals

163 S.W. 138

O'DONNELL v. CHAMBERS.

Court of Civil Appeals of Texas. Amarillo.

January 3, 1914.

Rehearing Denied January 31, 1914.

Error to District Court, Lynn County; W. R. Spencer, Judge.

Suit by J. R. Chambers against T. J. O'Donnell and others. Judgment for plaintiff, and defendant O'Donnell brings error. Affirmed.

H. C. Ferguson, of Lubbock, for plaintiff in error. G. E. Lockhart, of Tahoka, and Synnott & Underwood, of Amarillo, for defendant in error.

HUFF, C. J.

This is an appeal by the plaintiff in error T. J. O'Donnell from a judgment by default rendered in the district court of Lynn county, in favor of J. R. Chambers, for the sum of $3,423.65, against T. J. O'Donnell, C. E. Brown, and C. H. Doak, and the foreclosure of a lien to secure the purchase money for lots 10, 11, and 12, block 22, Chambers' addition to the town of Tahoka, Lynn county, Tex. The judgment recites that the defendants were duly cited and made default, and after hearing the evidence the court rendered a judgment. The petition alleges: That T. J. O'Donnell resides in Nolan county, and that C. E. Brown and C. H. Doak each reside in Lynn county, and for cause of action sets up that on the first day of November, 1909, the defendants therein executed a note for $2,500, with interest thereon from date at the rate of 10 per cent. per annum and providing for 10 per cent. attorney's fees if suit was brought thereon or if placed in the hands of an attorney for collection. "That at the time of the execution and delivery of said note the defendant and plaintiff entered into the following contract, in writing, to wit: `The State of Texas, County of Lynn. We, T. J. O'Donnell and J. R. Chambers, who resides in the said county and state, do on this day enter into the following contract, to wit: Said J. R. Chambers hereby loans to said T. J. O'Donnell the sum of $2,500.00 to be repaid to said Chambers by T. J. O'Donnell on or before one year from this date with ten per cent. interest from date at Tahoka, Texas. Said indebtedness being evidenced by a promissory note executed by said O'Donnell and C. H. Doak and C. E. Brown, in favor of J. R. Chambers. In further consideration of the above loan said O'Donnell hereby agrees and covenants to have erected a dwelling house upon the lot or lots in the Chambers addition to the town of Tahoka, in Lynn county, Texas, before the first day of January, A. D. 1910. Said house to be of the value of about $2,000.00, same to be insured by the said O'Donnell, in favor of the said Chambers. When said O'Donnell repays said Chambers as above stated, said Chambers shall make O'Donnell a good and proper deed of conveyance to said three lots 10, 11 and 12, in block 22, in the Chambers addition to Tahoka, Lynn county, Texas, on which said house is to be built, but in case said Doak or Brown, or both of them, have to pay said note on account of said O'Donnell's default, then said Chambers shall make the deed to said house and lots to him or them as the case may be, in trust for said O'Donnell or upon any terms that said Doak and Brown and Chambers may agree upon. But the said Doak and Brown shall be secured by a lien on said house and lots in case they pay off said indebtedness for O'Donnell.' Signed by T. J. O'Donnell and J. R. Chambers, and witnessed by D. T. Rogers and R. A. Chambers. Plaintiff alleges that said O'Donnell erected a house upon the property above described in a substantial compliance with the terms of said contract and went into possession of said property; that plaintiff agreed to convey the property above described and has been at all times willing and ready to convey the same to said defendants or either of them upon them or either of them, paying said indebtedness, and plaintiff here tenders to defendants a deed in writing to said property upon the payment of said note, together with all interest and attorney's fees due thereon. Plaintiff says on account of the execution of the contract and agreement heretofore stated the defendants have or may have some right, title, or interest in or to the property hereinbefore described, but that plaintiff has and is entitled to a lien against any interest, claim, or demand that defendants have or may be entitled to on account of said indebtedness."

Certain credits are alleged as having been made, and the amount and the date of payment are set out in the petition, and it is further alleged that plaintiff had placed the notes in the hands of C. E. Lockhart, an attorney, for collection, under an agreement to pay the attorney's fees stipulated for in the note. The prayer is for judgment for the debt, interest, and attorney's fees and for a foreclosure of the lien on the above-described land and premises. The petition does not appear to have been signed by an attorney. It has appended at its conclusion, "* * * Attorney for plaintiff, J. R. Chambers." This case is brought up to this court by a writ of error.

Plaintiff in error assigns, first, that the court was in error in rendering judgment because the petition upon which the suit is based was not signed by the defendant in error, was not authenticated by any one or by an attorney representing defendant in error, and that a judgment by default...