Martin v. Lee County State Bank

• Decision Date: 08 October 1924
• Docket Number: (No. 6768.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 265 S.W. 1057
• Parties: MARTIN et al. v. LEE COUNTY STATE BANK.
• Court: Texas Court of Appeals

265 S.W. 1057

MARTIN et al. v. LEE COUNTY STATE BANK.

(No. 6768.)^*

Court of Civil Appeals of Texas. Austin.

October 8, 1924.

Rehearing Denied November 5, 1924.

Appeal from District Court, Lee County; R. J. Alexander, Judge.

Action by the Lee County State Bank against A. Martin and others. Judgment for plaintiff, and defendants appeal. Affirmed.

W. A. Morrison, of Cameron, for appellants.

E. T. Simmang, of Giddings, for appellee.

BAUGH, J.

The Lee County State Bank brought this suit in the District Court of Lee County, Tex., on a note for $538.10, alleged to have been executed by R. H. Martin and M. N. Martin, with interest thereon from August 1, 1922, at 10 per cent., and 10 per cent. attorney's fees, said note secured by a chattel mortgage on personal property, and further secured by three vendor's lien notes for the aggregate sum of $538, executed by A. Martin to R. H. Martin, and by him transferred to the bank as collateral security. These notes bore 8 per cent. interest from July 29, 1921, and provided for the usual 10 per cent. attorney's fees. On April 20, 1923, default judgment was entered against R. H. Martin and A. Martin for $636, and for foreclosure of the chattel mortgage lien and the vendor's lien. All property covered by both liens was ordered sold, the proceeds applied upon the judgment "and the balance if any remaining, to be delivered to the defendants R. H. Martin and A. Martin." Judgment against M. N. Martin was for $495, with the provision that she be liable only for any balance due after the security was exhausted. From this judgment writ of error is prosecuted by defendants below acting through the same counsel. Each plaintiff in error presents separate assignments of error.

In the first assignment, A. Martin complains that the judgment was erroneous as to him in that appellee, plaintiff below, failed to allege ownership in the bank of the collateral vendor's lien notes, signed by him. There is no merit in this. Plaintiff did allege that these notes were transferred and assigned to it by R. H. Martin, payee therein, as collateral to the principal note, and that both the principal note and the collateral notes were past due and unpaid, and payment thereof refused. The bank was authorized to foreclose its collateral vendor's lien in the same suit on its principal debt. Denmark v. Avinger (Tex. Civ. App.) 257 S. W. 970; 31 Cyc. 885; 21 R. C. L., p. 668. This also disposes of the fifth assignment.

We also overrule the second assignment. A. Martin was not sued as a maker of, nor sought to be held liable upon, the principal note, but as the maker of the vendor's lien notes held as collateral. On these notes he was liable, under the allegations, for a greater sum than the amount of the judgment and cannot therefore complain. The third assignment complains that the judgment for $636 is excessive. By actual computation it appears to be for approximately $1.15 more than the exact amount due on the principal note. This is obviously an error in computation, and too trivial for our consideration. "De minimis non curat lex."

The fourth and seventh assignments complain of the provisions in the judgment that both the personal property and the real estate be sold, the proceeds applied to the satisfaction of the judgment, and the balance, if any, turned over to R. H. Martin and A. Martin, regardless of whether such excess, if any, was derived from the sale of the personal property which belonged to R. H. Martin, or the real estate, which belonged to A. Martin. The judgment should have made fuller provision for such distribution. However, the personal...