First Nat. Bank v. Robinson

• Decision Date: 24 November 1909
• Citation: 124 S.W. 177
• Parties: FIRST NAT. BANK OF EAGLE LAKE v. ROBINSON.
• Court: Texas Court of Appeals

124 S.W. 177

FIRST NAT. BANK OF EAGLE LAKE v. ROBINSON.

Court of Civil Appeals of Texas.

November 24, 1909.

On Motion for Rehearing, January 12, 1910.

Appeal from Colorado County Court; J. J. Mansfield, Judge.

Action by the First National Bank of Eagle Lake against S. S. Robinson on a note. From a judgment for defendant, plaintiff appeals. Reversed and rendered.

Strickland & Roos and Adkins & Green, for appellant. Carothers & Brown, for appellee.

JAMES, C. J.

The action is upon a note executed by R. E. Walker and J. F. Canaday payable to S. S. Robinson, or order, for $250, due on or before September 1, 1907, which note was for value indorsed in blank by Robinson to the bank on or about September 11, 1907. The bank brought this action on January 9, 1908, against Robinson, alleging, among other things, that when said note matured Canaday was insolvent and a nonresident of Texas, and that Walker had, on November 8, 1908 (meaning November 8, 1907, as clearly appears from the context), filed a petition in the United States District Court at Houston to be adjudicated a bankrupt and was by said court adjudicated insolvent and a bankrupt. The prayer was for judgment against the defendant Robinson. The defendant pleaded, besides a general denial, that on or about April 2, 1908, he required plaintiff by notice in writing to forthwith institute suit on the note and against Canaday and Walker, and two terms of the county court elapsed without any suit brought against the makers, by reason of which the defendant is discharged of liability. The court found as facts on September 11, 1907, Robinson indorsed and sold the note to the bank, and that in April, 1908, he gave the bank the written notice alleged, and that two terms of the county court having jurisdiction have since elapsed, and no suit has been filed as required, and that Walker was solvent at the time of the maturity of the note and has been solvent at all times since. Upon this finding judgment was rendered for the defendant. The court made no finding as to Canaday, which was unnecessary, if Walker was solvent, as was ascertained.

There is a statement of facts, and we think the finding as to the "solvency" of Walker, as that term is used in the statute, cannot be sustained. The sense in which the term "insolvency" is used is defined in Smith & Co. v. Ogerholm to be the absence of property of the debtor out of which a debt may be made by execution. Now, Walker testified, and it is an undisputed fact, that on or about November 7, 1907, he filed a petition in bankruptcy; that he had turned over all his property to the trustees in bankruptcy, and the same is still in their hands. Walker further testified that at the time of the trial he had about 80 head of cattle which were mortgaged for the purchase money, but this transaction did not take place until about July 1, 1908, which appears to have been long after this suit was filed. Upon the above evidence, Walker was clearly insolvent in the meaning of the statute, and defendant had no defense in the fact that Walker had not been sued.

As to Canaday, the judge made no finding. As to him Walker testified that he was intimately acquainted with him and did not know of any property that he had then or since the execution of the note, and he never had any property that witness knew of except a diamond ring which he wore, and that he did not know of his whereabouts, except that witness had received two letters from him from Missouri. The witness Stephens testified that Canaday had no property that he could find; that he had made inquiry, but could not find any, but made no inquiries outside of Colorado county; that his residence was unknown to witness. Leeseman, the county clerk of Colorado county, testified that he had examined his records back four years, and they disclosed no property in the name of Canaday; that he is personally acquainted with Canaday, and never knew or heard of his owning any property subject to execution. Strickland testified, when the note was placed in his hands for collection, that Canaday was not in Eagle Lake, and had not been for a long time; that witness went to Houston looking for him and could not find him; that his residence was unknown to witness; that he had known him a long time and never knew of his owning any property; that he had made inquiry of Dr. Norris if Canaday had any property, and Norris replied that he did not know of any, that he had a debt against him, and he had never been able to collect it; also of Frank Stephens, whose reply was the same as that of Norris; and he had made inquiry of others, and all told him that they did not know of any property that Canaday had.

The above is all of the testimony on the subject, and, though...