Heidelberg Amusement Club v. Mercedes Lumber Co.
| Decision Date | 08 December 1915 |
| Docket Number | (No. 5555.) |
| Citation | 180 S.W. 1133 |
| Parties | HEIDELBERG AMUSEMENT CLUB et al. v. MERCEDES LUMBER CO. et al. |
| Court | Texas Court of Appeals |
Action by the Mercedes Lumber Company against the Heidelberg Amusement Club and others. Judgment for plaintiff, and certain defendants bring error. Reformed and affirmed.
Amos Rich, of Brownsville, and Alex. Wheless, of Mercedes, for plaintiffs in error. Robt. J. Smith, of Piqua, Ohio, W. H. Gossage, of Edinburg, and Canales & Dancy, of Brownsville, for defendants in error.
The Mercedes Lumber Company, on May 27, 1914, sued Peter Lange, John Lertora, George Marsh, Homer Mack, Alexander Wheless, and Fred Lange, alleging that they compose an unincorporated club or association named or styled the Heidelberg Amusement Club, and that plaintiff had sold defendants certain supplies for said club or association for which there remained due and unpaid the sum of $235.22, for which amount, with interest, judgment was asked. On November 28, 1914, the defendants Peter and Fred Lange, John Lertora, and George Marsh filed an answer, wherein, by exception and plea, they urged the two-year statute of limitation. On the same day defendant Marsh filed a motion to make additional parties defendant, naming various persons, who, he alleged, were members of the club, and as such jointly and severally liable for the debt due plaintiff. This motion was overruled on the same day. The plaintiff dismissed as to Homer Mack, who had not been served with citation, alleging that he was and had been, since prior to the filing of the suit, hopelessly insolvent. The defendants on said date also filed an answer, containing a general demurrer and a general denial, and the defendant Wheless filed a separate answer, denying liability and pleading that he was not a member of said club and never had been. It appears that on November 28, 1914, a judgment by default was rendered against Peter Lange, John Lertora, George Marsh, Alexander Wheless, and Fred Lange, and also against the Heidelberg Amusement Club. On November 30, 1914, the defendants filed a motion to set aside the judgment, which was dismissed by the court, a lengthy order being entered, wherein it is stated that the pleadings, consisting of the general demurrer and general denial, were filed after judgment was rendered. On April 30, 1915, Peter Lange, Fred Lange, Alexander Wheless, and the Heidelberg Amusement Club filed their petition for writ of error.
Plaintiffs in error contend that the special judge did not qualify by taking the oath of office, and that no entry was made of the disqualification of the regular judge, and therefore the judgment should be reversed. The record does not show that any entry was made concerning the disqualification of the...
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