Howell v. First Federal Sav. & Loan Ass'n of New Braunfels
| Decision Date | 16 September 1964 |
| Docket Number | No. 14278,14278 |
| Citation | 383 S.W.2d 484 |
| Parties | R. K. HOWELL et al., Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF NEW BRAUNFELS, Appellee. |
| Court | Texas Court of Appeals |
Pat Maloney, San Antonio, for appellants.
Schleyer, Bartram, Reagan & Burrus, New Braunfels, for appellee.
This suit was instituted by First Federal Savings and Loan Association of New Braunfels, a corporation, against R. K. Howell and wife, Luncille Howell, Irving L. Bates and wife, Marjorie Bates, John H. Jessop, Jr., and wife, Mary Scheib Jessop, seeking to recover the amount of principal, interest and attorney's fees provided for in a certain deed of trust note in the principal sum of $11,000.00, and for foreclosure of a deed of trust lien against a certain tract of land in Wilson County, Texas, a part of the S. & J. Arocha Grant, lying within the corporate limits of the City of Floresville, being known as all of Lots Nos. 3 and 4, and parts of Lots Nos. 5 and 6, in Block No. 15, of the City of Floresville. Judgment was rendered in favor of plaintiff, as prayed for, against all of the defendants. Defendants Howell and Jessop have not appealed, and the judgment rendered against them is affirmed.
The defendants Bates answered by a general denial, alleging that in taking title to the land Irving L. Bates, Esq. acted only as an agent for his clients, the Howells; that Marjorie Bates incurred no personal liability or responsibility for any act or transaction by and between plaintiff and defendants herein. The answer of defendants Bates was not verified. The trial court in its findings of facts found:
'6. On November 28, 1958, Robert E. Shepherd et al conveyed to Defendants R. K. Howell and wife, Lucille Howell, by general warranty deed recorded in Vol. 332, pages 346-8, of the Deed Records of Wilson County, Texas, the property described therein and in such deed a vendor's lien was retained for the benefit of said Plaintiff to secure the above described note, which note represented moneys advanced by Plaintiff for part of purchase price of said property.
'7. On November 28, 1958, R. K. Howell and wife, Lucille Howell, executed and delivered a deed of trust to Plaintiff covering the above mentioned property as additional security for the payment of said note and which deed of trust is recorded in Vol. 329, pages 582-4, Deed of Trust Records of Wilson County, Texas.
'8. On September 13, 1960, R. K. Howell and wife, Lucille Howell, conveyed the property above mentioned to Irving L. Bates and wife, Marjorie Bates, by general warranty deed recorded in Vol. 344, pages 507-8, Deed Records of Wilson County, Texas.
'9. As part of the condsideration for the conveyance described in fact finding immediately above, the Defendants Irving L. Bates and wife, Marjorie Bates, agreed to assume the indebtedness evidenced by the aforesaid note.
* * *
Appellants did not bring up a statement of facts nor did they dispute any of the findings of fact made by the trial court.
On March 11, 1963, Irving L. Bates and wife made a demand for a jury, and paid a jury fee of Five Dollars. When the case was called for trial on October 22, 1963, with a jury panel present, none of the defendants appeared, after due notice of the setting of the case for trial. The trial court dismissed the jury panel and after hearing evidence rendered judgment in favor of plaintiff against all defendants for the amount of principal, interest and attorney's fees due on the note sued on, together with foreclosure of the deed of trust lien against the property above described.
Irving L. Bates and his wife, Marjorie Bates, alone have prosecuted this appeal. Appellants made but one point, as follows:
'The Judgment of the Trial Court should be reversed because the Trial Court was without authority to enter a judgment, since Appellants having...
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