King v. Parks

• Decision Date: 20 April 1901
• Citation: 63 S.W. 900
• Parties: KING et al. v. PARKS et al.
• Court: Texas Court of Appeals

63 S.W. 900

KING et al. v. PARKS et al.

Court of Civil Appeals of Texas.

April 20, 1901.

Appeal from district court, Erath county; B. M. Estes, Special Judge.

Action by L. D. Parks and others against A. C. King and others. From the judgment, A. C. King and certain other defendants appeal. Reversed.

Homer R. Mitchel, for appellants King and Palmer. Daniel & Keith, for appellant American Surety Co. Lee Young, A. P. Young, and Robertson & Robertson, for appellees.

CONNER, C. J.

As originally instituted on the 7th day of February, 1898, it appears that this suit was an action by the appellee L. D. Parks upon a certain promissory note executed by A. C. King in the sum of $2,000, bearing interest at the rate of 10 per cent. per annum from its date, which was November 17, 1896. The note was made payable to Dan T. Frye on the 1st day of January, 1897, at the Dublin National Bank, in Erath county, Tex. Plaintiff also sought to foreclose the lien given by said A. C. King to secure said note upon certain described law books of the aggregate value of about $3,000. It was alleged that Parks, for value, and before maturity, and in due course of trade, and by indorsement, had acquired said note and mortgage; that one N. W. Palmer was in possession of the books, asserting some kind of claim thereto. King and Palmer were accordingly duly cited, and answered in the suit. Frye, who was alleged to have indorsed said note to appellee Parks, was not cited or declared against.

King and Palmer answered, in substance, by duly-verified plea: That, as between Frye and King, there was no consideration for said note and mortgage; that King was a mere accommodation maker for the benefit of the said Dan T. Frye, who desired therewith to secure credit and means of continuing his own business; that, therefore, Frye, by the indorsement to Parks, became the principal obligor in the obligation sued upon,—of all of which they alleged Parks had notice before the indorsement to him of said note; that the plaintiff L. D. Parks had theretofore, for a valuable consideration, released the said Frye on the said note, and refused to sue him; and they prayed to be discharged, but also prayed that said Frye, who was a resident of Bosque county, Tex., be cited to answer their said plea, and that, in the event the plaintiff recovered judgment against them, that they have judgment against Dan T. Frye in like amount.

L. D. Parks caused the books mentioned to be sequestered, and King and Palmer replevied the same, giving as surety on the replevy bond the American Surety Company, a corporation. The case was continued from time to time until the January term, 1900, of the district court, when the appellee Parks filed his amended petition declaring as before, and further declaring against Dan T. Frye as the indorser of the said note, specially alleging that, while plaintiff had made contract with Frye not to sue him, which contract was attached to the amended petition as an exhibit, he had not contracted to release him, and that, if said contract between the plaintiff and Frye was to be construed as a release, then, in such event, plaintiff declared he was without notice of the accommodation character of the note; that Frye had fraudulently concealed the facts from plaintiff at the time of his acquisition of said note, for which he had paid full value; and prayed that he have judgment against him as indorser.

The American Surety Company at the same term intervened in the suit, adopted the answer of King and Palmer, and alleged that in fact Frye, who in the meantime had been cited to answer the cross action of King and Palmer, was a joint owner with King and Palmer of the books mentioned; that since the replevy of the same, as hereinbefore stated, the books had been sold, and placed beyond the reach of the process of the court, whereby it was impossible to have them forthcoming should the court adjudge that it be so done; that Frye was the recipient of the value of the property replevied, and the surety company prayed for judgment against Frye in the event the plaintiff in the suit recovered judgment as prayed for.

Frye appeared, and presented a plea of privilege, alleging his residence in Bosque county, and negativing all statutory exceptions authorizing suit against him in any other county.

It further appears that Palmer and King, who at the time of the institution of the suit were residents of Erath county, had removed therefrom, and were not present in person, and that their ex parte depositions, taken at the instance of the plaintiff, and which had been on file up to within a few days of the trial, were missing. The American Surety Company, by counsel, made application for continuance, setting forth the necessity of King and Palmer's testimony, and the absence of said depositions. This was overruled. Plaintiff Parks abandoned his prayer for recovery as against Frye, and the court thereupon entered judgment sustaining said plea of privilege, and dismissed Frye from the suit. Verdict and judgment thereupon followed in favor of appellee L. D. Parks against A. C. King for the principal, interest, and attorney's fees on said note in the sum of $3,083.65, with a foreclosure of said mortgage lien upon the law books mentioned as against A. C. King and N. W. Palmer, and against King, Palmer, and said surety company upon said replevy bond for the sum of $3,334, the value of the property sequestered, as found by the jury, with interest thereon; providing, however, that, in case the property replevied was forthcoming as provided by the statute, the judgment against the sureties should not be enforced, and in no event should be enforced against them except for such part of said judgment in favor of Parks as said sureties should be required to pay, and that for such payment as they were required to make they should be subrogated to all rights of the plaintiff.

The pleadings and record are somewhat voluminous, but the foregoing is believed to present in outline such statement as is necessary to illustrate the conclusion to which we have come. King, Palmer, and the American Surety Company have appealed.

The action of the court in sustaining said plea of privilege, in overruling the application for continuance, and in other matters have all been assigned as error. We, however, will but briefly discuss a single assignment, viz. the one complaining of the action of the court in sustaining the plea of privilege and in dismissing said Frye from the suit.

In this we think the court in error. If the facts stated in the pleadings of appellants were true, then while, as between Parks and King, the latter was a principal, yet as between King and Frye, in equity, King occupied the relation of a surety.

Our statute provides that: "When any suit is brought against two or more defendants upon any contract, any one or more of the defendants being surety for the others, the surety may, upon a written statement of the matter being set out in his...