Holland Texas Hypotheek Bank v. Broocks

• Decision Date: 22 June 1927
• Docket Number: (No. 1460.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: HOLLAND TEXAS HYPOTHEEK BANK OF AMSTERDAM, HOLLAND, v. BROOCKS et al.
• Court: Texas Court of Appeals

297 S.W. 1070

HOLLAND TEXAS HYPOTHEEK BANK OF AMSTERDAM, HOLLAND, v. BROOCKS et al.

(No. 1460.)^*

Court of Civil Appeals of Texas. Beaumont.

June 22, 1927.

Rehearing Denied September 21, 1927.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by the Holland Texas Hypotheek Bank of Amsterdam, Holland, against John H. Broocks and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

See, also, 263 S. W. 1079, 266 S. W. 183.

Nall, King & Jackson, of Beaumont, for appellant.

M. S. Duffie, E. E. Easterling, and E. W. Easterling, all of Beaumont, for appellees.

HIGHTOWER, C. J.

The appellant, Holland Texas Hypotheek Bank of Amsterdam, Holland, filed this suit in one of the district courts of Jefferson county against appellees John H. Broocks, C. C. Goodwin, Thomas W. Blount, I. E. Roberts, J. B. Whitton, Sr., and P. W. Sublett, to recover a balance of $5,431.21 claimed by appellant to be due on a judgment. Appellant's suit is a common-law action upon a supersedeas bond in which appellee Broocks was the principal and the other appellees were his sureties.

Appellees answered by general demurrer, a number of special exceptions, several pleas in abatement, res adjudicata, and estoppel, the details of which it is unnecessary to state at this point.

The trial court to whom the case was tried without a jury overruled the demurrer and all exceptions interposed by appellees, as well as their pleas in abatement, and, after hearing the case upon the facts as adduced upon the trial, rendered judgment to the effect that appellant was not entitled to recover anything against any of the appellees, and they were allowed to go hence without day and recover of appellant their costs.

The facts upon which this litigation arose may be briefly stated, in substance, as follows:

On November 28, 1916, the appellee John H. Broocks executed in favor of appellant his promissory note for $10,000, bearing interest at the rate of 8 per cent. per annum, payable semiannually, and to become due 2 years after date. The note was afterwards extended for another year, but no part of it was ever paid by Broocks. To secure the payment of the note, Broocks and wife executed a deed of trust on two tracts of land in San Augustine county owned by Broocks, aggregating 663½ acres. Appellant brought suit in the district court of Jefferson county against Broocks on the note, and on April 10, 1922, judgment was rendered in favor of appellant in that suit against Broocks for $12,292.60, principal, interest, and attorney's fees due on the note at that time, and also judgment was rendered in favor of appellant against both Broocks and his wife for foreclosure of the deed of trust lien securing the payment of the note. That cause was numbered 4004 on the docket of the district court, and we shall refer to it as cause No. 4004 hereinafter. From the judgment in that cause Broocks and wife sued out a writ of error to have the proceedings in that cause reviewed and revised by this court, and filed, along with their application for the writ, a supersedeas bond in the sum of $26,000 in favor of the Holland Texas Hypotheek Bank, and the sureties on that bond were C. C. Goodwin, Thomas W. Blount, I. E. Roberts, J. B. Whitton, Sr., and P. W. Sublett.

Broocks and wife never filed in this court a transcript in cause No. 4004, and after it was too late for them to do so Holland Texas Hypotheek Bank filed a motion in this court, accompanied by sufficient portions of the record in cause No. 4004, to have the judgment of the lower court in that cause affirmed on certificate. In due order this court granted that motion, and affirmed the judgment of the lower court in cause No. 4004 against Broocks and wife, and the sureties on the supersedeas bond, on certificate. In the motion to affirm on certificate and the record accompanying it, the names of two of the sureties on the supersedeas bond were incorrectly stated. The surety Thomas W. Blount was named as Thomas M. Blount, and the surety P. W. Sublett was named as M. W. Sublett. In other respects the names of the sureties were correctly stated. When the judgment of this court of affirmance on certificate was entered, it showed the names of the sureties as contained in the motion to affirm, and therefore misnamed the sureties Blount and Sublett. In other words, the judgment of this court of affirmance of certificate had the name of Blount, Thomas M. Blount, and the name of Sublett, M. W. Sublett.

After the mandate of this court in cause No. 4004 reached the district court for observance, the entry of the judgment in that court also named the surety Blount as Thomas M. Blount, and the surety Sublett as N. W. Sublett, and in addition to that mistake, the name of the surety Roberts, as stated in the judgment of the trial court after return of our mandate, as I. D. Roberts, instead of I. E. Roberts. No motion or proceeding of any kind was instituted by appellant in this or the trial court in cause No. 4004 to correct the mistake as to the name of any of the sureties on the supersedeas bond.

After the mandate of this court to the trial court and the entry of the trial court's judgment observing it, appellant caused an order of sale to be issued upon the judgment in cause No. 4004 against Broocks and wife and the sureties upon the supersedeas bond, commanding the sheriff of San Augustine county to sell the land of Broocks against which the deed of trust had been foreclosed, and the sheriff levied upon the same and advertised the same for sale on the first Tuesday in April, 1925. On March 24, 1925, Broocks and wife, C. C. Goodwin, J. B. Whitton, Sr., and I D. Roberts filed a suit in the Fifty-Eighth district court of Jefferson county against the Holland Texas Hypotheek Bank, Thomas W. Blount, I. E. Roberts, P. W. Sublett, and the sheriff of San Augustine county. That suit will be referred to hereinafter as the Goodwin suit. The purpose of that suit as shown by the petition of the plaintiffs, was to correct the mistake in the judgment of affirmance on certificate by this court as to the names of the sureties Sublett and Blount, and also to correct the same mistake in the judgment of the district court, which was misstated in the judgment of the district court. It was alleged by the plaintiffs in that case, in substance, that the supersedeas bond in cause No. 4004 was the joint obligation of all the sureties who signed the same, and that the judgment of affirmance on certificate by this court had misnamed them, and that the same mistake had been made in the judgment of the trial court observing this court's judgment, and that, being joint obligors on the supersedeas bond, the judgments should have properly named them so that they would bear their burden as cosureties with the plaintiffs in the Goodwin suit, Goodwin and Whitton; that it would be unjust and inequitable to the plaintiffs Goodwin and Whitton if they were compelled to bear the burden of looking after the sale of the Broocks land under the order of sale and to see that it brought enough to satisfy the judgment against Broocks; and they prayed, in substance, that the sale by the sheriff of the Broocks land as advertised be enjoined until the Goodwin suit could be reached and tried upon its merits and the names of their cosureties Sublett, Blount, and Roberts, on the supersedeas bond be correctly stated and judgment entered against them along with the plaintiffs Goodwin and Whitton. This petition for injunction was presented to Hon. George C. O'Brien, Judge of the Fifty-Eighth Judicial District, and he granted a temporary injunction as prayed for.

Thereafter, on March 31, 1925, appellant here, Holland Texas Hypotheek Bank, filed its answer in the Goodwin suit, in which a general demurrer and a number of special exceptions were interposed to the petition of the plaintiffs in that cause, and, in addition, as a ground for dissolving the injunction, the Holland Texas Hypotheek Bank alleged in its answer that if the judge of the district court would dissolve the temporary injunction in the Goodwin suit and permit the land of Broocks to be sold by the sheriff as advertised, it was willing to bid, and would bid, at the sheriff's sale a sufficient amount for the land to satisfy the judgment it held against Broocks for the principal sum, interest, and all costs of suit, and that it was willing to and would enter into any amount of bond that the trial court might require that it would bid the full amount of its judgment against Broocks in the event the sheriff should be permitted to sell the land, and that it would protect from any and all liability and damages the sureties on the supersedeas bond, whether they were properly named in the several judgments thereon or not. In connection with this...