Doty v. Caldwell
| Decision Date | 27 January 1897 |
| Citation | 38 S.W. 1025 |
| Parties | DOTY et al. v. CALDWELL. |
| Court | Texas Court of Appeals |
Appeal from Galveston county court; William B. Lockhart, Judge.
Action by J. L. Caldwell against A. M. Doty and others. Judgment for plaintiff, and defendants appeal. Affirmed.
John C. Walker, for appellants.
A. M. Doty drew a check on the Ft. Worth National Bank to the order of Charles Jessup which was indorsed to Caldwell. Before taking the check Jessup had the American National Bank of Galveston wire the former bank, inquiring if A. M. Doty's check on it for $140 was good. The reply was that Doty had more than that amount to his credit. Doty soon afterwards wired the Ft. Worth Bank not to cash the check, and drew a second check in favor of T. H. Luckett. The bank did not have sufficient deposit of Doty's to pay both checks, and paid neither. This suit was brought by Caldwell against Doty, Jessup, and the Ft. Worth Bank, and the bank brought in Luckett. The case was tried, and taken to the court of civil appeals at Galveston, and there dismissed, upon the holding that there was no final judgment in the case, in failing to dispose of Luckett. Afterwards the trial court proceeded, on motion, and made the judgment a final one in accordance with that ruling. There was no error in this proceeding. The successor in office of the county judge who entered the original judgment was unquestionably competent to make the judgment final on motion. The recitals in the original judgment of themselves furnished sufficient data upon which to dispose of Luckett in the manner accomplished by the amended judgment.
The defense that the check was given in furtherance of a gaming transaction will not avail on this appeal, for the reason that, upon one view of the evidence, it was not so given, and we should adopt that theory of the testimony favorable to the judgment.
The remaining question is whether or not the holder of a check given on a bank for a part of a deposit has a right of action against the bank. The courts of this country are so divided on this proposition that a uniform rule on the subject is now hopeless. The only case in which it has been decided in this state, that we have been able to find, is Bank v. Randall, 1 White & W. Civ. Cas. Ct. App. § 975, which merely adopts the result reached by Mr. Daniel in his work on Negotiable Instruments, in favor of the right of action. The clearest exposition of the contrary doctrine that we have seen is in ...
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