McGregor v. Skinner

• Citation: 47 S.W. 398
• Parties: McGREGOR et al. v. SKINNER et al.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 09 June 1898
• Court: Court of Appeals of Texas

47 S.W. 398

McGREGOR et al. v. SKINNER et al.¹

Court of Civil Appeals of Texas.

June 9, 1898.

Appeal from district court, Harris county; William H. Wilson, Judge.

Action by Sarah R. Skinner and husband against J. D. McGregor and others. Judgment for plaintiffs. Defendants McGregor and another appeal. Affirmed.

W. G. Love, for appellants. Ed. S. Phelps, for appellees.

WILLIAMS, J.

By the amended petition on which the cause was tried, Skinner and wife sought to recover of the Texas Automatic Light Company and appellants, Moore and McGregor, the sum of $1,000, with interest and a stipulated attorney's fee, upon a note payable to Mrs. Skinner, signed by the corporation, and upon the back of which the other defendants were alleged to have written their names as original joint undertakers at the time of its execution, which note was alleged to have been given for a loan of money belonging to Mrs. Skinner in her separate right, and to be her separate property. The corporation, in answer, undertook to plead in set-off an indebtedness alleged to be due it from Skinner upon subscriptions to its stock, averring that the note sued on was in fact the community property of Skinner and wife. Exceptions were sustained to this answer on the ground that it sought to set off the debt of the husband against the note belonging to the wife. Moore and McGregor answered that they were only indorsers of the note for accommodation, and that they had been discharged by failure of plaintiffs to exercise proper diligence. They also prayed for judgment over against the corporation. When the cause was called on appearance day, it was set by agreement for October 18, 1897. On that day plaintiffs announced ready, and defendants thereupon filed amended pleadings, to examine which the court allowed plaintiffs' counsel until the afternoon, and then, upon his representation that the presence of his client was necessary to meet the defenses set up, the court, over the objection of defendants, set the cause for October 29, 1897. It is stated in the briefs that when the case was called on the last-named day defendants made an application for continuance, which was overruled; that there is such an application in the record, but no bill of exceptions to the overruling of it appears. It cannot, therefore, be noticed, and the assignment based upon it will be disregarded. No error is made to appear in postponing the case, and in forcing it to trial on the second day set for trial. The postponement was within the discretion of the court, and this court cannot say that there was not a good reason shown for it. Besides, no injury is shown to have resulted. When testifying, Skinner stated that the understanding with Moore and McGregor, when the loan was made, was that all of the stockholders were to sign the note, and that...