Morris v. Moon
| Decision Date | 14 April 1909 |
| Parties | MORRIS v. MOON. |
| Court | Texas Court of Appeals |
Appeal from Tom Green County Court; Milton Mays, Judge.
Action by M. A. Moon against M. W. Morris and another. From a judgment for plaintiff, the defendant Morris appeals. Reversed.
S. C. Autry, J. Curtys Simmons, and E. F. Brown, for appellant. Thomas & McCarty, for appellee.
This suit was instituted on March 11, 1908, by appellee against E. Dabezies and M. W. Morris, alleging in his original petition that said Dabezies was indebted to him in the sum of $155.35, besides interest and attorney's fees, evidenced by two promissory notes, executed by said Dabezies and secured by a chattel mortgage on two certain lunch cars. Morris was made a party defendant to said suit, it being alleged that he was setting up some pretended claim to said cars, the nature and character of which was unknown to plaintiff, praying for judgment for his debt against said Dabezies and against both defendants for a foreclosure of his mortgage lien upon said lunch cars. Appellant answered by general denial, and specially to the effect that at the time his codefendant, Dabezies, executed said notes and mortgage upon said lunch cars, they were then, and have ever since been, his, appellant's, property, and that said mortgage was executed thereon by said Dabezies without his knowledge or consent and at the time of the execution of said notes and mortgage said Moon knew that said lunch cars were the property of appellant. Appellee thereupon filed his first amended original petition, alleging, among other things, that about the 20th of May, 1907, defendants, Dabezies and Morris, entered into a partnership for the purpose of doing business in the city of San Angelo in running and conducting a restaurant and lunch counter, and that said lunch cars were a part of said partnership assets, which partnership continued from said date up to and including the date of the filing of this petition, and that said business had at all times been conducted in the name of E. Dabezies, the said Morris being a dormant partner; that on the 3d of September, 1907, defendant Dabezies, acting for said firm, with the approval and consent of appellant, executed said notes and mortgage upon said lunch cars, which were alleged to be of the value of $175 each, praying for judgment for his debt against both of them as partners, doing business under the name of E. Dabezies, as well as for the establishment and foreclosure of his mortgage lien upon said lunch cars and for order of sale. To this appellant Morris replied by plea denying the existence of said alleged partnership. The case was tried before the court without a jury, and judgment rendered in favor of appellee against appellant and said Dabezies as partners for the sum of $165.30, with interest and attorney's fees, with a foreclosure of mortgage lien upon said lunch cars, from which this appeal is prosecuted by appellant alone.
By his first assignment, appellant urges that the court erred in admitting in evidence, over his objection, a certified copy of the chattel mortgage referred to in the pleading, because there was no proof showing that the original mortgage was lost or mislaid; and by his fifth it was insisted, in addition thereto, that the court erred in so admitting it, because there was no proof of the execution of the original, and because same was not filed and notice given appellant at least three days before the cause was called for trial. The certificate of the clerk to the certified copy offered in evidence showed that the original was on file in his office, which answers the first objection.
Dabezies admitted that he executed the mortgage in question, which dispensed with proof of its execution. It is not necessary to file a certified copy of a chattel mortgage in the papers of the case three days before trial, as required in case of a deed, but it is sufficient if it is done before announcement of ready. Article 3330, Sayles' Ann. Civ. St. 1897, provides for the admission in evidence in like manner as the original might be of a certified copy of a chattel mortgage under the hand and seal of the clerk of the court in whose office the same shall have been filed, unless the execution thereof has been denied under oath by the party sought to be charged thereby, provided that the party so desiring to use such instrument shall file the same in the papers of the case before announcement of ready for trial. The record shows, in addition to what has already been stated, that a certified copy of this instrument had in fact been filed in the papers of the case before announcement, in accordance with this article. The instrument was, therefore, properly admitted. See Oxsheer v. Watt, 91 Tex. 402, 44 S. W. 67.
We do not think there is any merit in appellant's second assignment, which complains of the action of the court in admitting said...
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International Travelers' Ass'n v. Melaun
...fifteenth assignments are overruled. Gainesville Water Co. v. City of Gainesville, 57 Tex. Civ. App. 257, 122 S. W. 959; Morris v. Moon (Tex. Civ. App.) 120 S. W. 1063. In its assignments 7, 9, and 10, appellant complains of the admission of evidence to the effect that at the time of the de......
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Denman v. James
...the original stands as though its execution was proved as at common law, unless an affidavit of forgery be filed." See, also, Morris v. Moon, 120 S. W. 1063. Nor do we think that the court erred, as claimed in appellant's third assignment, in permitting the witness Dudley to testify over ob......