Robertson v. Angle

• Decision Date: 27 June 1903
• Citation: Robertson v. Angle, 76 S.W. 317 (Tex. App. 1903)
• Parties: ROBERTSON et al. v. ANGLE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 317

76 S.W. 317

ROBERTSON et al. v.ANGLE.^*

Court of Civil Appeals of Texas.

June 27, 1903.

Appeal from District Court, Wood County; T. B. Butler, Judge.

Action by Mrs. M. E. Angle against T. J. Goodwin and others.From a judgment in favor of plaintiff, defendants Robertson, Moore, and Wright, as sureties, appeal.Affirmed.

M. D. Carlock and W. B. Teagarden, for appellants.B. B. Hart and A. J. Britton, for appellee.

BOOKHOUT, J.

This is a suit instituted in the district court of Wood county by appellee on January 3, 1902, against T. J. Goodwin, Rufus Goodwin, R. N. Robertson, C. W. Moore, and Ed. A. Wright to recover the balance due on a promissory note executed by said defendants on March 3, 1901, payable to appellee.It was claimed that the balance due on said note was $679.27.A trial resulted in a verdict and judgment for the plaintiff, and Robertson, Moore, and Wright, who, it was shown, were sureties on the note, appealed.The Goodwins do not appeal.

Conclusions of Fact.

On the 28th day of March, 1901, Mrs. M. E. Angle loaned to T. J. Goodwin $1,000, for which amount he executed his note to her, with R. N. Robertson, C. W. Moore, and E. A. Wright as sureties; said note maturing on December 1, 1901, and bearing 12 per cent. per annum interest after maturity.The interest from the date of the note to its maturity, amounting to $80, was paid in advance, and deducted from the amount of the loan.Within two or three months after said loan said T. J. Goodwin deposited with Mrs. Angle several notes, amounting to $247.36, as collateral to secure said loan.Mrs. Angle turned the notes back to Rufus E. Goodwin, who was the son of, and in charge of and conducting the mercantile business of, T. J. Goodwin, for collection.He collected $142.07 on the said collateral notes.T. J. Goodwin failed in business, and made an assignment of his mercantile business to J. H. Rhodes, on November 15, 1901.On December 24, 1901, Robertson, Moore, and Wright, sureties on the note held by Mrs. Angle, notified her of their suretyship, and to bring suit upon the note against T. J. Goodwin, the principal.Mrs. Angle lived at Winsboro, and there was testimony that she was compelled to go to Mineola, 26 miles away, to get attorneys, as all the attorneys at Winsboro were adversely employed, and could not take her case.The county court of Wood county met the first Monday in January, it being the sixth day thereof, and the next term of the court would not meet until the first Monday in April thereafter.Suit was filed on January 3, 1902, in the district court of Wood county, for Mrs. Angle, by attorneys residing at Mineola.The first term of the district court thereafter began on April 21, 1902.Mrs. Angle received a payment of $380 on the note from Rhodes, trustee.

In answer to special issues the jury found that Mrs. Angle used proper care and prudence in turning the collateral notes over to Rufus Goodwin for collection, and that on December 24, 1901, T. J. Goodwin was insolvent; that there was no understanding, at the time she made the loan, that collateral security was to be given her in addition to the personal security of defendants; that T. J. Goodwin was in a position to have given collateral security to cover the note up to the time of his failure; that he had no property subject to execution out of which plaintiff could have made her debt on December 24, 1901, by the exercise of ordinary diligence; that he has transferred sufficient property since December 24, 1901, to pay the amount of plaintiff's claim, and that since said time he has transferred real estate of the value of $800.They also found a general verdict for plaintiff against T. J. Goodwin and Rufus Goodwin for $740, with 10 per cent. interest per annum, and against the sureties, Robertson, Moore, and Wright, for $583, with 6 per cent. per annum from the date of trial.Judgment was rendered in accordance with the verdict.The evidence supports these findings.

1.It is contended that, the sureties having given notice to the holder of the note to bring suit thereon, and suit not having been filed until January 3, 1902, and then in the district court the first term of which began April 21, 1902, the sureties are released, because suit could and should have been filed in the county court the first term of which began January 6, 1902, and the second term began the first Monday in April thereafter.The statute provides that if the creditor, after written notice by the surety to bring suit, shall fail to bring his suit to the first term of the court thereafter, or to the second term showing good cause why he did not bring it to the first term, and prosecute the same to judgment and execution, the surety giving such notice shall be discharged from all liability thereon.The cause of action was within the jurisdiction of both the district and county courts.The notice was served on the creditor on December 25, 1901.She resided at Winsboro, which is 10 miles from Quitman, the county seat of Wood county, and 26 miles from...