Kyle v. Richardson

• Decision Date: 20 December 1902
• Citation: 71 S.W. 399
• Parties: KYLE et al. v. RICHARDSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

71 S.W. 399

KYLE et al. v. RICHARDSON.^*

Court of Civil Appeals of Texas.

December 20, 1902.

Appeal from district court, Clay county; A. H. Carrigan, Judge.

Suit by J. C. Richardson against J. M. Kyle and others. Decree for plaintiff, and defendants appeal. Reversed, and suit dismissed.

Allen & Wantland, for appellants. R. E. Taylor, for appellee.

STEPHENS, J.

This suit was brought and successfully maintained in the district court to enjoin the collection of a judgment rendered in the justice court in favor of the Farmers' National Bank against appellee, as principal, and E. B. Carver, as indorser, on a promissory note for $150. The excuse offered by appellee for not pursuing the remedy by appeal, as well as his defense to the note, was thus stated in his testimony: "This case was tried before Geo. A. Watts, special justice of the peace, on February 25, 1901. I was present when the case was tried and when the court rendered his decision. The court announced that he would give judgment in favor of the plaintiff against me as principal and E. B. Carver as indorser, but he said nothing about giving judgment in favor of Carver over against me. Mr. Burkhalter was my attorney in that case, and he prepared a memorandum of the judgment rendered, and Mr. ____ signed it. I appealed from this judgment to the county court, and the appeal was dismissed because the appeal bond was not made payable to E. B. Carver as well as the Farmers' National Bank. The note on which the suit was brought stipulated that it should be void if the road was not completed to Mineral Wells by September 1, 1899. I did not agree to waive this stipulation and pay the note if the road was completed to Mineral Wells by November 1, 1899. I told Mr. Arnold, if they would allow me what they owed me, I would waive this stipulation; but they refused to make this agreement with me, and I refused to waive this stipulation in the note. I never agreed with any one to waive this stipulation in the note. The road mentioned in the note—the Gulf & Brazos Valley Railroad—was not completed to Mineral Wells till on the night of October 31, 1899. It was about ten o'clock at night when they built into the city limits of Mineral Wells." The judgment recorded by the justice of the peace was as follows: "This day came the parties by their attorneys, and submit the matter in controversy, as well of fact as of law, to the court; and, it appearing to the court that the defendants had been duly cited herein, and the evidence and argument of counsel having been heard and fully understood by the court, that the plaintiff, the Farmers' National Bank ought to recover its damages against the defendants, J. C. Richardson and E. B. Carver, and the court now here assesses the damages, to wit: Principal, $135.00 (being the amount of note sued upon, less a credit of $15.00); interest from November 1st, 1899, at 8 per centum per annum, $14.25; attorney's fees, $13.50,—the several amounts aggregating the sum of $162.75. It is therefore ordered by the court that said plaintiff, the Farmers' National Bank, do have and recover of and from the defendants, J. C. Richardson and E. B. Carver, jointly and severally, the said sum of $162.75, and all costs of suit, and that execution issue in favor of plaintiff therefor, and that this judgment bear interest from its date at the rate of 8 per cent. per annum. And it appearing to the court that E. B. Carver is indorser on said note, it is therefore ordered by the court that the said E. B. Carver have and...