Moody v. First Nat. Bank

• Decision Date: 10 May 1899
• Citation: 51 S.W. 523
• Parties: MOODY et al. v. FIRST NAT. BANK OF ATHENS.
• Court: Texas Court of Appeals

51 S.W. 523

MOODY et al. v. FIRST NAT. BANK OF ATHENS.

Court of Civil Appeals of Texas.

May 10, 1899.

Appeal from district court, Henderson county; W. H. Gill, Judge.

Action by the First National Bank of Athens against J. D. Moody and others. Judgment for plaintiff, and defendants appeal. Reformed and affirmed.

Cone Johnson and T. B. Butler, for appellants. Faulk & Faulk and Richardson, Watkins & Miller, for appellee.

FLY, J.

Appellee sued J. D. Moody and H. H. Rowland on a promissory note for $5,000, bearing interest at 10 per cent., and providing for the same per cent. for attorney's fees in case it became necessary to institute legal proceedings to collect the debt. The note was signed by Moody, and indorsed by H. H. Rowland. Appellee, simultaneously with filing suit, sued out writs of attachment for the sum of $5,000, and the same were levied upon lands in Henderson, Navarro, and Titus counties. In an amended petition it was alleged that B. W. Rowland was setting up some pretended claim to the land so levied upon in Navarro county, and that T. J. Groce was "setting up some pretended claim to the land and premises so levied upon in Titus county; that said claims of both defendants Rowland and Groce are fraudulent, fictitious, and void as against the plaintiff's said lien, and are clouds upon the title to said premises, and will prevent the same from bringing their fair value upon a sale thereof." B. W. Rowland was alleged to reside in Smith county, and Groce in Galveston county. H. H. Rowland and Moody filed a general denial, and also alleged that Rowland had paid the note. The defendants Groce and B. W. Rowland filed pleas of privilege to be sued in their respective counties, and then filed pleas of misjoinder of persons and actions, on the ground that Rowland claimed only the land in Navarro county, and Groce the land in Titus county. The pleas were overruled, and they then filed general demurrers and general denial. There was a trial by the court, which resulted in a judgment for the principal, interest, and attorney's fees specified in the note against Moody and H. H. Rowland, and foreclosing the attachment as against all the defendants. There is no statement of facts in the record, and it is urged by appellants that its omission is caused through no fault or omission on their part. It is provided in article 1382, Sayles' Civ. St., that whenever a statement of facts has not been filed in the time prescribed by law, "and the party tendering or filing the same shall show to the satisfaction of the courts of civil appeals that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time in this chapter for filing the same, and that his failure to file the same within said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control, the court of civil appeals shall permit said statement of facts to remain as part of the record, and consider the same in the hearing and adjudication of said cause, the same as if said statement of facts had been filed in time." It is insisted that appellants have been deprived of the statement of facts through the fault of judge or attorney, and that this should cause a reversal of the judgment. There are two affidavits appended to the brief of appellants,—one by Cone Johnson, one of the attorneys for appellants; and the other by B. W. Rowland, one of the appellants. The trial court adjourned on September 30, 1898, 10 days being granted in which to prepare and file a statement of facts. It is shown by the affidavit that on the 6th of October appellants' counsel sent a statement from Tyler, in Smith county, prepared by them, to counsel for appellee, at Athens, in Henderson county, requesting that they should examine the same, agree to it, and return to the senders. In the affidavit of Cone Johnson it is stated that he requested that the statement, whether agreed to or not, should be returned on October 7th; but it is shown by a letter which he wrote to counsel for appellee, which is appended to a counter affidavit, that the letter was written on the 7th, and that the request was that the statement be returned by the noon train on October 8th. The statement was not agreed to by appellee's attorneys, and was returned, as requested, to the attorneys for appellants, on the noon train of October 8th. On the morning of the 9th the statement was presented to the trial judge. The statement of facts in the record was filed on October 12th, but when it was approved, or what was done with it after approval until its filing, is not shown. It may have been prepared on October 9th, and placed in the hands...