McDonald v. Evans

• Decision Date: 17 January 1949
• Docket Number: No. 5928.,5928.
• Citation: 217 S.W.2d 870
• Parties: McDONALD v. EVANS.
• Court: Texas Court of Appeals

Page 870

217 S.W.2d 870

McDONALD v. EVANS.

No. 5928.

Court of Civil Appeals of Texas. Amarillo.

January 17, 1949.

Appeal from District Court, Donley County; Luther Gribble, Judge.

Suit on a promissory note by J. W. Evans against W. C. McDonald. Judgment for plaintiff and defendant appeals.

Judgment affirmed.

Chas. H. Dean, of Plainview, for appellant.

J. R. Porter, of Clarendon, for appellee.

LUMPKIN, Justice.

This suit was instituted in Donley County, Texas, by the appellee, J. W. Evans, against the appellant, W. C. McDonald, upon a promissory note. The note was in the amount of $1,140.23 and payable to Dr. J. W. Evans. It was dated April 6, 1942, at Clarendon, Texas, and due October 6, 1942. The appellant's sole defense was that the note was barred by the four year statute of limitations, Article 5527, Vernon's Revised Civil Statutes. The trial court overruled appellant's plea and granted judgment for $1,840.39 in favor of the appellee, together with attorney's fees in the amount of $184.03. To this action and judgment of the court, the appellant gave notice of appeal, which in due time was perfected, and the cause is before us for disposition.

The appellant attacks the trial court's judgment in a single point of error in which he contends that the court erred in overruling his plea of limitations. In order to dispose of this contention, it is necessary to review portions of the testimony offered by appellee. The appellant offered no evidence in support of his contention.

Mr. J. R. Porter, attorney for the appellee, testified that on September 17, 1946, he wrote the appellant and called to his attention that on October 6, 1946, the note would be barred by the four year statute of limitations. Mr. Porter's letter continued: "* * * Let me know what you can do in the way of paying the note or a part of it and extending the due date on the balance. Dr. Evans does not want to sue on the note but will have to unless some arrangement is made before the date above mentioned * * *." A few days after mailing this letter, Mr. Porter received a long distance telephone call in which the appellant offered in payment of the note $200 cash and a check in the amount of $300, dated November 1, 1946. On September 28, 1946, Mr. Porter filed this suit and the same day addressed this letter to the appellant: "Bill, I talked to Dr. Evans about your offer of $200 cash and a check dated November 1, 1946, for $300, and told him about what you said. He has been and is yet sick. He turned the proposition down and would not say what he would do in the way of a settlement; but I believe I could get him to take $750 cash, I would not promise this but I think I can * * * let me hear from you in this connection * * *"

Mr. Porter's testimony continues: "After Bill got this letter of September 28, he called me up again from Plainview and insisted that I try again to accept the $200 cash and * * * check dated November 1 for $300, and I again went back to see Dr. Evans and he turned it down * * * Then, in about ten days or two weeks, Bill called me again and said he had some livestock he would deliver to Dr. Evans. They were in Swisher County. That he would deliver this livestock to Dr. Evans in cancellation of the note * * * Dr. Evans got so sick that he was carried away from here * * * he wasn't keeping his office and he was gone. I talked with Dr. Jenkins and Dr. Ellis both and they advised me not to bother Dr. Evans with a piece of business and I didn't until just before Christmas." In the conversations he had with the appellant, Mr. Porter was asked not to file suit and not to take judgment. However, notwithstanding appellant's request, on December 27, 1946, Mr. Porter wrote the sheriff of Hale County enclosing a citation with a copy of appellee's petition attached. This letter was returned on December 30, 1946, with this notation: "We are unable to locate Mr. McDonald." Immediately upon receiving this letter from the sheriff of Hale County, appellee's attorney called the clerk of Donley County and asked him to issue another citation; and, later, on several occasions he asked the district clerk to issue the citation and the clerk said he would. The appellant was served in Hale County on October 16, 1947, with a citation issued by the district clerk of Donley County on October 14, 1947.

To toll the statute of limitation, not only must suit be filed in time, but there must be a bona fide intention to have process issued and due diligence must be exercised to see that this is done. Ferguson et ux. v. Mellinbruck, Tex.Civ.App., 134 S.W. 2d 680, dism. judgm. cor. "The question of whether proper diligence has or has not been used in any particular case is quite often a...