Johnson v. Oswald
| Decision Date | 07 December 1912 |
| Parties | JOHNSON et al. v. OSWALD. |
| Court | Texas Court of Appeals |
Appeal from Dallas County Court; W. F. Whitehurst, Judge.
Action by E. E. Oswald against Marsene Johnson and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
Fannin & Underwood, of Dallas, for appellants. George Sargeant and Cecil L. Simpson, both of Dallas, for appellee.
This suit was instituted by the appellee, Oswald, in the county court of Dallas county at law, against R. E. L. Giles, American Type Founders' Company, and the appellants Marsene Johnson and W. C. Lessing. The plaintiff sued to recover of the defendants Giles and the American Type Founders' Company the amount of two promissory notes, with interest and attorney's fees, as provided for in said notes, and to foreclose a chattel mortgage given to secure the payment of said notes, and of the defendants Johnson and Lessing damages alleged to have been sustained by reason of the conversion by them of the property upon which the plaintiff claimed a lien by reason of the chattel mortgage. On the 2d day of January, A. D. 1912, which was appearance day of the term, the case was called, and the defendants Johnson and Lessing not appearing either in person or by attorney, and neither having filed an answer, the plaintiff took a default judgment against them for $481.69, having in the meantime dismissed his case against the defendants Giles and American Type Founders' Company. The judgment recites the waiver of a jury, and that the court, after hearing the pleadings, the evidence, and argument of counsel, "is of the opinion that all material allegations in plaintiff's cause of action are true, that the defendants W. C. Lessing and Marsene Johnson are indebted to the plaintiff in the sum of $481.69, with legal interest, and that the law is for the plaintiff." The judgment then proceeds in the usual form to decree that the plaintiff recover of the defendants Johnson and Lessing the sum of $481.69, with interest thereon from the date of the judgment at 6 per cent. per annum, together with all costs of suit. The appellants, Johnson and Lessing, in due time, filed a motion to set aside the judgment and for a new trial, which being overruled, they appealed.
There are several assignments of error, but they need not be considered and discussed in detail. The contention that the judgment is a personal one against the appellants on the notes sued on is probably not sustained by the record. At least, we are inclined to think it is subject to the construction that it is based upon the allegations in appellee's petition, attempting to charge a conversion of the property upon which he held a lien by the appellants and the proof offered in support thereof. The judgment, however, is clearly not as explicit as it should be in this respect.
It is assigned that the plaintiff's petition shows no cause of action whatever against the appellants, and therefore insufficient to support a judgment by default on appeal. If, as contended, the petition shows no cause of action against the appellants, then, as to them, it was subject to a general demurrer and insufficient to sustain the judgment rendered against them. It is clear the petition shows no liability on the part of the appellants for the payment of the notes sued on, and whether its allegations sufficiently charge a conversion of property upon which appellee had a lien to authorize a judgment against appellants for its value may be gravely doubted. The existence of the lien is sufficiently stated; but we find no direct or specific allegation...
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