Gamel v. City Nat. Bank

• Decision Date: 27 February 1924
• Docket Number: (No. 428-3849.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Gamel v. City Nat. Bank, 258 S.W. 1043 (Tex. 1924)
• Parties: GAMEL et al. v. CITY NAT. BANK OF COLORADO, TEX.
• Court: Texas Supreme Court

Page 1043

258 S.W. 1043

GAMEL et al. v. CITY NAT. BANK OF COLORADO, TEX.

(No. 428-3849.)^*

Commission of Appeals of Texas, Section B.

February 27, 1924.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by E. B. Gamel and Mrs. I. L. Gamel against City National Bank of Colorado, Tex., in the nature of a common-law writ of error coram nobis, to set aside a judgment, consolidated with a suit by defendant against E. B. Gamel and others. Judgment in favor of Mrs. I. L. Gamel in the first mentioned suit and against the Bank in the last mentioned suit was reversed by the Court of Civil Appeals (241 S. W. 735), and E. B. Gamel and Mrs. I. L. Gamel bring error. Affirmed.

Chas. L. Black, of Austin, and Hickman & Morrow, of Dublin, for plaintiffs in error.

Royal G. Smith, of El Paso, Thomas R. Smith, of Colorado, Tex., and Moore & Smith, of El Paso, for defendant in error.

HAMILTON, J.

This suit, No. 3755 in the district court of Mitchell county, was brought by Mrs. I. L. Gamel, joined pro forma by her husband, E. B. Gamel, as a proceeding in the nature of the common-law writ of error coram nobis, for the purpose of setting aside a judgment previously rendered by the same court in cause No. 3671, alleging that the judgment sought to be set aside was rendered by the court without knowledge of the fact that one of the parties defendant was a married woman; that, had the court known that fact, it would not have rendered the judgment; and that, for these reasons, the judgment is void or voidable, and subject to be opened, reconsidered, and set aside.

The judgment attacked was taken by the defendant in error against E. B. and I. L. Gamel, in cause No. 3671, district court of Mitchell county, on November 20, 1917, in a suit on a promissory note dated April 28, 1913, due six months after date, signed E. B. Gamel and I. L. Gamel. I. L. Gamel was the wife of E. B. Gamel at the date of the execution of the note. The petition in cause No. 3671 did not disclose this fact. It did not contain any averment that the note was given for any indebtedness contracted by the wife for the benefit of her separate estate or for necessaries for herself or her children. The plaintiff had actual knowledge of the coverture of Mrs. Gamel and of the fact that the note was not given for an indebtedness incurred by the wife, or by her authority, for the benefit of her separate estate or for necessaries for herself or her children. The judgment contained no recital directing the issuance of execution and levy thereof upon the separate estate of the wife, but simply directed issuance of execution as though she were a man or a feme sole, and under no disability. The note, in fact, was given for an indebtedness incurred by the husband to the bank in carrying on the buying and selling of cotton prior to the execution of the note. Execution was issued on the judgment January 17, 1918, in due form, placed in the hands of the sheriff, and was returned by him not executed, because no property was found belonging to defendants subject to execution. The judgment is wholly unsatisfied. Abstract of judgment was issued November 22, 1917, and was duly recorded in Mitchell, Erath, and Commanche counties, so that, if the judgment was valid, it was sufficient to fix the lien on real estate in each of said counties. Mrs. I. L. Gamel thereafter inherited real estate in each of said counties from her mother. These facts are agreed to by the parties.

Before the suit attacking the judgment, No. 3755, was filed, the City National Bank of Colorado, Tex., brought suit against E. B. Gamel and wife, I. L. Gamel, M. I. Thomas, J. R. Johnson, Charles Parks, H. L. Knight, Charles Denny, and Henry Wittmer, the number of said suit being No. 3743, district court of Mitchell county, to foreclose the lien fixed by recording the abstract of judgment, as shown above, the petition alleging that Mrs. I. L. Gamel had afterwards inherited the lands, above noted, on which the lien was sought to be foreclosed, and that the other defendants purchased from her with notice, etc. The defendants, Gamel and wife, Thomas, and Johnson, in suit No. 3743, specially pleaded that the judgment in cause No. 3671, which was the basis of the lien, was invalid as to I. L. Gamel, because, at the time of the execution of the note, which was the subject-matter and basis of that suit, at the time of the filing of the suit, and at the time of the rendition of the judgment, said I. L. Gamel was a married woman, the wife of the defendant E. B. Gamel; that the note was not given for the benefit of her separate estate, or for necessaries for herself and children, but was executed by her as surety for her husband on his personal debt incurred in the cotton business; that plaintiff knew all of said facts, but did not plead any of them, nor in any way bring them to the attention of the trial court; that therefore the court was without power in that cause to render a personal judgment against I. L. Gamel.

Suits Nos. 3755 and 3743 were consolidated by agreement of the parties, and were tried before the court without a jury. Judgment was rendered in favor of Mrs. I. L. Gamel in No. 3755, against the bank in No. 3743, vacating the original judgment, and as to Mrs. I. L. Gamel, personally, canceling the liens on her separate estate.

The Court of Civil Appeals reversed the judgment of the district court, and rendered judgment in favor of the City National Bank of Colorado, Texas, 241 S. W. 735.

Petition for writ of error by E. B. Gamel and his wife, I. L. Gamel, was "granted because of apparent conflict with Shaw v. Proctor (Tex. Civ. App.) 193 S. W. 1104."

Fred J. Proctor and his wife, Nettie Temple Proctor, brought that suit in the county court at law of Dallas county to vacate and set aside as to Nettie Temple Proctor a judgment rendered against her and others in the same court in cause No. 20340, in a suit on a note signed by her and her son, Louis Proctor, while she was the wife of Fred J. Proctor, without the joinder, consent or knowledge of her husband. The note was not given for the benefit of her separate estate, nor for necessaries for herself and children, but was executed to accommodate her son in a business transaction. The note was transferred to an innocent purchaser who knew nothing of Nettie Proctor's being a married woman. The plaintiff in the suit thereon never knew of her being married, and supposed she was not married. She settled all bills, made all purchases, and deposited money sent her by her husband in her own name. She answered in said suit, and was represented by an attorney, but coverture was not pleaded by her. Her husband stayed out West with his daughter, coming to Dallas occasionally. They were not divorced or separated.

The Court of Civil Appeals held in that case that the note, being signed by the wife without joinder of the husband, was a nullity, and that she could not be legally bound thereon; that the judgment being founded on a note executed by the wife, and not authorized or consented to by the husband, and being not for a debt authorized by the statute, the trial court was not empowered to render judgment against the wife thereon, and that said judgment was not enforceable against the property of herself and husband. That court reversed the judgment of the trial court which held the judgment in cause No. 20340 binding as to Nettie Proctor, and rendered judgment setting aside the judgment in cause No. 20340 in so far as it affected Nettie Proctor.

The matters of similarity in the instant case and the Proctor Case, supra, are that in neither case was the note given for a debt incurred for the benefit of the wife's separate estate or for necessaries for herself and her children, nor in either case was the coverture of the wife made to appear. The points of dissimilarity in the two cases are that in the instant case the husband joined the wife in the execution of the note, and judgment was by default, while in the Proctor Case the husband did not join the wife in the execution of the note, and the wife appeared in the trial of the case.

The holdings of the Court of Civil Appeals in the Proctor Case have been set out above. The holdings...