Phillips v. Chapman
| Decision Date | 11 November 1926 |
| Docket Number | (No. 1907.) |
| Citation | 288 S.W. 1100 |
| Parties | PHILLIPS et al. v. CHAPMAN, Commissioner of Banking. |
| Court | Texas Court of Appeals |
Conner & McRae, of Eastland, and Butts & Wright, of Cisco, for plaintiffs in error.
Spencer & Rogers, of San Antonio (W. J. Rogers, of San Antonio, of counsel), for defendant in error.
J. L. Chapman, commissioner of banking, and, as such commissioner, in charge of the affairs of the Security State Bank & Trust Company, for the purpose of liquidating its affairs, brought this suit against W. A. Martin, Wm. F. St. John, and a number of others whose names we need not state here, alleging that on the 25th day of February, 1920, H. W. Williams executed and delivered to the American National bank of Eastland a certain promissory note for the principal sum of $815, due four months after date, payable to the order of said last-named bank, with interest, and providing for the payment of attorney's fees. That, coincident with the making of said note, the parties named as defendants executed and delivered to said bank a certain guaranty contract whereby the payment of said note was guaranteed at its maturity, or any time thereafter to which extension might be made, and agreed to any extension of said note, without notice, waiving presentment, notice, protest, and diligence in bringing suit against the principal or any guarantor.
The commissioner alleged the ownership of the note to be in the Security State Bank & Trust Company, request, and refusal to pay the note. It is alleged that certain of the guarantors, naming them, had been discharged through bankruptcy proceedings, that another was dead and his estate insolvent; that others, some eight in number, naming them, were guarantors of the payment of said note; that H. R. Williams was maker of said note, and that the plaintiff does not make them parties to this suit for the reason that he does not know their whereabouts.
Plaintiff prayed for judgment, jointly and severally, against those sued. Defendants W. A. Martin, F. E. Day, L. A. Hightower, and Earl Conner answer by general denial, and by special answer say that:
"They nor either of them, nor did the maker of the note, as alleged, H. R. Williams, execute such note as sued on, nor did they or either of them, authorize any person to sign such note as described in plaintiff's petition."
They allege that the note signed by Williams bore date February 11, 1920, and so believe and charge that since the execution of the note the date of the note has been changed from February 11, 1920, to February 25, 1920, without the knowledge or consent of Williams or either of defendants, and that by reason of said change the obligation is without force or effect.
Defendants, by verified trial amendment, allege that they, nor either of them, executed the guaranty as described in plaintiff's petition in that the guaranty executed by them did not, when executed, bear date of February 25, 1920, but of February 11, 1920, and that such change in date was without their knowledge or consent. The other defendants not named above answered, and each adopted the defensive matters, as above stated.
The trial court, in the judgment rendered, discharged certain of the defendants, but recited therein that said promissory note, "plaintiff's cause of action," describing same, signed by H. R. Williams and made payable to the American National Bank, and the said guarantee, were signed by each of the defendants and guaranteed the payment of said note, and that said instruments were placed in evidence without objection on the part of defendants, Wm. F. St. John, Robert D. Gordon, Tom W. Crutcher, F. A. Jones, George Phillips, and E. L. Trimble, and for that reason plaintiff ought to recover against each of said defendants, and entered judgment against them jointly and severally for the amount of said note, interest, and costs. The court dismissed as to D. G. Hunt, Jr., and Walter H. Morris, made defendants but not served with citation. Defendants St. John, Crutcher, and Phillips excepted to the judgment and gave notice of appeal; St. John and Phillips assigned error, gave bond, and have filed briefs.
Opinion.Appellants suggest fundamental error in the rendition of the judgment against them as the record on its face shows that they and their codefendants are sued as not being primarily liable, but as joint guarantors of the payment of the note executed by H. R. Williams, who was not joined in this suit and had not been previously sued, and it was not made to appear that Williams resides beyond the limits of the state, nor in such part of the state that he cannot be reached by the ordinary process of law, nor that his residence is unknown and cannot be ascertained by the use of reasonable diligence, nor that he is dead nor actually or notoriously...
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