Forty-Acre Spring Live Stock Co. v. West Texas B. & T. Co.

• Decision Date: 20 May 1908
• Citation: 111 S.W. 417
• Parties: FORTY-ACRE SPRING LIVE STOCK CO. et al. v. WEST TEXAS BANK & TRUST CO.
• Court: Texas Court of Appeals

111 S.W. 417

FORTY-ACRE SPRING LIVE STOCK CO. et al. v. WEST TEXAS BANK & TRUST CO.

Court of Civil Appeals of Texas.

May 20, 1908.

On Rehearing, June 17, 1908.

Error from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by the West Texas Bank & Trust Company against the 40-Acre Spring Live Stock Company and another. Judgment for plaintiff, and the live stock company brings error. Affirmed.

W. M. Walton, O. Dickens, and Dowell & Dowell, for plaintiff in error. Mason Williams, for defendant in error.

NEILL, J.

This writ of error was sued out from a judgment in favor of the West Texas Bank & Trust Company against the 40-Acre Spring Live Stock Company and John Dowell for $35,486.49, principal and interest, and $3,548.64, attorney's fees, with interest on both amounts from date of judgment, at the rate of 10 per cent. per annum, together with a foreclosure of a lien on certain real and personal property. Defendant in error, a Texas corporation, was plaintiff in the court below, and plaintiffs in error, the 40-Acre Spring Live Stock Company, also a corporation organized under the laws of the state of Texas, and John Dowell were defendants in said court. For brevity the parties will be called in this opinion as they were in the district court.

There is no statement of facts in or accompanying the record, but there appears in the transcript of the record an agreement, filed in the cause on April 17, 1907, which is as follows:

"Agreement as to Nature of Judgment That may be Taken.

"West Texas Bank & Trust Company v. John Dowell et al. No. 19,544. In 45th District Court, Bexar Co., Texas. It is hereby agreed by and between the plaintiff and both defendants that this case shall be continued until Monday, the 24th day of June, 1907, at which time the plaintiff shall be allowed to take a judgment against both defendants for the face value of their notes, with accrued interest to said date, and ten per cent. attorney's fees, with a foreclosure against both defendants of the lien created by the deed of trust set out in the amended original petition and on file in the papers in this cause, and the foreclosure of the vendor's lien notes held as collateral by the plaintiff and described in plaintiff's petition; and the foreclosure of the chattel mortgages described in plaintiff's petition and on file in this cause; said foreclosures and all of them to be against both defendants. Said decree shall provide that the plaintiff shall not issue an order of sale until the 17th day of October, 1907, and not then if either or both of the defendants shall before said last-mentioned date pay to the plaintiff, or into the registry of the court, the sum of ten thousand dollars and all interest accrued on the entire judgment to the date of payment; said ten thousand dollars to be applied upon the judgment to be entered upon the 24th day of June, 1907; and if said defendants, or either or both of them, shall pay said ten thousand dollars and said accrued interest before said 17th day of October, 1907, then the plaintiff agrees not to have issued any order of sale for the balance due by reason of said judgment before April 17, 1908. In default of said payment, however, the plaintiff can have execution issued on said 17th day of October, 1907. Said judgment shall further provide for a judgment against both defendants for the costs of court, and the officers of the court entitled to said costs may have their execution therefor in due course of law, without any stay as to the costs. If said ten thousand dollars and accrued interest is paid on or before the 17th day of October, 1907, and the balance of the judgment is paid on or before the 17th day of April, 1908, the attorney's fees in said judgment shall be reduced to one thousand dollars, instead of the ten per cent. on principal and interest on said June 24, 1907. It is further provided that there shall be taxed as costs of court, to be paid by the defendants and to be secured by the same liens as the principal, such charges for inspecting the property as the plaintiff may expend in inspecting said property, — not to exceed the sum of two hundred and fifty dollars. Provided, however, that this portion of the costs shall be considered as part of the balance of the judgment due after October 17, 1907, providing the defendants, or either of them, shall pay the said ten thousand dollars and accrued interest before October 17, 1907; otherwise, it shall become a part of the judgment subject to the stay of order of sale to October 17, 1907. It is further agreed that no additional stock shall be placed on the ranch. It is further agreed that cause No. 24,851, styled 40-Acre Spring Live Stock Company v. Frank Heierman, et al., pending in the 53rd District Court of Travis county, Texas, shall immediately be dismissed at the costs of the plaintiff. 40-Acre Spring Live Stock Company, by John Dowell, Sec. and General Manager. Mason Williams, Attorney for Plaintiff. Warren Moore, Atty. for Defts. by appointment of John Dowell. John Dowell, Attorney for Defendants."

Upon examining the pleadings of the plaintiff, it appears that they are such as the above agreement of judgment can be predicated upon, and upon inspecting the judgment, we find that it was entered in consonance with the agreement. From this it seems to us there is nothing left to do but to affirm the judgment. But a number of errors are assigned, which we shall consider, as far as we can, in view of the record before us. The judgment, omitting the number and style of the case, commences as follows: "Now on this the 24th day of June, 1907, the above-styled cause coming on for hearing on the regular call of the docket, and all parties appearing and announcing ready for trial, and the plaintiff introducing in evidence its notes and mortgages alleged in its petition, and the defendants having agreed that a judgment might be entered for the plaintiff for its debt, with interest, attorney's fees, and costs, and a foreclosure as prayed for in its petition, the court is of the opinion that the plaintiff should recover in accordance with the prayer in its petition, with a foreclosure of its lien."

The first assignment of error complains of the recitation, in the part of the judgment above quoted, that "all parties appearing and announcing ready for trial," as being false, it being stated in the assignment that the defendants were, in fact, not present when the case was tried and the judgment rendered, and that the 40-Acre Spring Live Stock Company, being an artificial person, could not act in person, but only through its authorized officers. Even if the recitation referred to should be construed to mean the physical appearance of the defendant Dowell, we cannot say from the record that such recitation is not true. Of course, as the corporation is artificial, it cannot be construed to mean that the 40-Acre Spring Live Stock Company physically appeared before the court at the time the case was tried. We apprehend, however, that such construction should not be given the recitation. "Appearance" means, ordinarily, the...