McAfee v. Jeter & Townsend

• Decision Date: 03 February 1941
• Docket Number: No. 5257.,5257.
• Citation: 147 S.W.2d 884
• Parties: McAFEE v. JETER & TOWNSEND.
• Court: Texas Court of Appeals

147 S.W.2d 884

McAFEE v. JETER & TOWNSEND.

No. 5257.

Court of Civil Appeals of Texas. Amarillo.

February 3, 1941.

Appeal from Childress County Court; R. Stansell Clement, Judge.

Suit by Andy McAfee against Jeter & Townsend in the nature of a bill of review, to enjoin execution of a judgment which the defendants had procured against the plaintiff. From judgment dismissing the case, plaintiff appeals.

Reversed and remanded.

C. Land, of Memphis, for appellant.

Mahan & Broughton, of Childress, for appellees.

STOKES, Justice.

Appellant, Andy McAfee, filed this suit against appellees in the nature of a bill of review and seeking an injunction against the execution of a judgment which appellees had procured against him in the county court of Childress County on the 17th of October, 1939. The original suit was upon a promissory note signed by appellant and Lee McAfee in the principal sum of $257.20, bearing interest at the rate of ten per centum per annum and providing for ten per cent additional as attorneys' fees if sued upon or placed in the hands of an attorney for collection. The note bore date of September 12, 1935, and was payable October 15, 1935. The original suit was filed by appellees on the 31st of March, 1938, and cited appellant and his codefendant, Lee McAfee, to appear at the next term of the court which convened on the 6th of June, 1938. Appellant filed an answer, consisting merely of a general demurrer and general denial, on the 6th of June, 1938, and no further action was taken nor orders entered in the case until October 17, 1939, when final judgment was rendered by the court in favor of appellees against both of the defendants therein for the amount sued for.

On December 4, 1939, an execution was issued upon the judgment and placed in the hands of the sheriff of Hall County who levied the same upon 130 acres of land in that county as the property of appellant and advertised the same for sale on the 2d of January, 1940. When the advertisement appeared, appellant alleges he ascertained for the first time that the judgment had been rendered against him and he immediately filed this suit.

In addition to the foregoing, he alleged that, when his answer was filed by his attorney in the original suit on June 6, 1938, his attorney and the attorney who had filed the original suit for appellees, in a verbal conversation, entered into an agreement that the suit would not be tried at that time, but would be set for trial at a later date, and appellant's attorney would be notified of the date in ample time to enable him to prepare the case for trial. He alleged that, in the conversation, his attorney informed appellees' attorney as to the nature of the defense which appellant would present to the suit on the note. He also alleged that his attorney had another conversation with appellees' attorney, later in the month of June, 1938, in which the stipulation was renewed and confirmed and that, during the time the cause was pending, his attorney made several trips from Memphis, where he lived, to Childress, where the case was pending, to ascertain the status of the pending suit; that the case had been transferred to what he alleged to be the "retired docket" of the court and that he informed the trial judge of his agreement with appellees' attorney and the trial judge acquiesced in such agreement. He alleged that, notwithstanding his agreement with appellees' counsel, acquiesced in by the trial judge, on the 17th of October, 1939, at a regular term of the county court, the case was removed from the "retired docket", placed upon the "active docket" of the court, called for trial by the court and judgment rendered against him for the full amount sued for, all without the knowledge or consent of appellant or his counsel and in direct violation of the agreement and stipulation aforesaid.

Appellant alleged a number of defenses which he would have set up and urged in the trial on the 17th of October, 1939, if he or his attorney had known the cause would be tried at that time, among which defenses were, first, that he did not sign the note as principal, but as a surety, and he was so regarded by appellees; that he did not sign the note until long after it was executed by his codefendant, Lee McAfee, who was the principal thereon; that the transaction in which the note was issued was executed and closed between Lee McAfee and appellees fully three weeks before appellant signed the note as surety, and his act in signing the same was wholly without consideration of any kind. Secondly, that the indebtedness represented by the note had been extended several times by agreement between appellees and the principal, Lee McAfee, without the knowledge or consent of appellant and that, if he had ever been liable thereon, his liability had been released and discharged by such renewals and extensions.

When the instant case was called for trial, the court sustained a general demurrer and a number of special exceptions urged by appellees and, appellant declining to amend his bill, the case was dismissed. The record, particularly the nature of the special exceptions sustained by the court, indicates that the trial judge was of the opinion that, appellant not having pleaded his alleged meritorious defenses in his answer in the original suit on the note, he was not entitled to have the judgment reviewed by means of a bill of review and that the facts pleaded would not constitute such a defense. In a proceeding of this kind the procedure observed by the courts does not require an allegation that meritorious defenses were pleaded in the answer to the original suit. Indeed, if appellant alleged meritorious defenses in his bill, it was not necessary that he allege he had filed any sort of an answer to the petition in the original suit. He would be entitled to a bill of review in so far as that phase of the matter is concerned even though...