Sec. Trust & Sav. Bank v. Ravel.
| Decision Date | 13 June 1918 |
| Docket Number | No. 2133.,2133. |
| Citation | 173 P. 545,24 N.M. 221 |
| Parties | SECURITY TRUST & SAVINGS BANKv.RAVEL. |
| Court | New Mexico Supreme Court |
Syllabus by Editorial Staff.
Where a trial amendment is improperly allowed, under Code 1915, § 4162, it is the duty of the complaining party to either object to the filing or to move to strike it out, and, if his motion is ruled against him, to stand thereon and appeal; and, though the amendment changes the cause of action and is a clear departure, a party pleading over and going to trial thereon waives his right to object.
Where one unconditionally guaranteed payment of a note, the law of Texas, where the guaranty was executed, is that the extension of the time for payment of the note, not predicated upon an agreement does not operate to discharge the guarantor.
In an action against the unconditional guarantor of a note, evidence held not to show any valid extension of the time for payment of the note, such as would release the guarantor.
In such action, where there was no evidence to show an extension of time for payment, an instruction based on that theory was erroneous.
The mere giving of time to a creditor, without the knowledge and consent of the guarantor, and without a binding, valid agreement to that effect for a definite time and for a consideration, will not discharge the surety.
Where it is impossible for the Supreme Court to say whether the jury considered or based its verdict upon an improperly submitted issue, the cause must be reversed and remanded to the district court, with direction to grant appellant a new trial.
Appeal from District Court, Luna County; Ryan, Judge.
Suit by Security Trust & Savings Bank against Sam Ravel. Judgment for defendant and plaintiff appeals. Reversed and remanded, with direction to grant a new trial.
Where a trial amendment is improperly allowed, under Code 1915, § 4162, it is the duty of the complaining party to either object to the filing or to move to strike it out, and, if his motion is ruled against him, to stand thereon and appeal; and, though the amendment changes the cause of action and is a clear deparature, a party pleading over and going to trial thereon waives his right to object.
W. H. Winter, of El Paso, Tex., and Vaught & Watson, of Deming, for appellant.
M. W. Stanton, of El Paso, Tex., H. B. Holt, of Las Cruces, and R. F. Hamilton, of Deming, for appellee.
Appellant sued appellee in the district court of Luna County on a judgment claimed to have been rendered in its favor by the district court of El Paso county, Tex. That judgment was rendered in a suit instituted on a promissory note executed to appellant by Tri State Amusement Company, the payment of which was guaranteed in writing by appellee, Bernard Schuster and A. E. Schuster. Appellee filed an answer to the complaint in the district court of Luna county, setting up that he had not been served with process in the Texas suit and had not appeared in such action; that the attorneys who entered their appearance in such suit did so without authority from appellee, and without his knowledge or consent. Appellant, upon the filing of such answer, filed an amended complaint suing in the alternative upon the promissory note, the payment of which had been guaranteed by appellee, as stated. Appellee filed answer, setting up as a defense to the county of the complaint, suing upon the note, that the guaranty had been executed by appellee without consideration. As a second defense he pleaded that he had been induced to guarantee the payment of the note by false and fraudulent representations made to him by the agents of appellant. Appellant replied, denying the allegations of the answer. The cause was tried to a jury, and, after defendant had introduced practically all of his evidence, his attorneys asked leave of court to file a trial amendment. setting up the fact: That the contract was executed in Texas and was to be performed there. That under the law of Texas it is provided (article 6329) that:
“Any person bound as surety upon any contract for the payment of money or the performance of any act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute suit upon such contract.”
That it is further provided by article 6337, which is old or former number 3819, that:
“The remedy provided for sureties by this title extends to indorsers, guarantors, drawers of bills which have been accepted, and every other suretyship, whether created by express contract, or by operation of law.
That under the law of Texas any valid extension without notice to and consent of such guarantor or surety releases such guarantor or surety. That the time of payment of the note in suit had been extended by a contract made, from time to time, by and between appellant and Arthur E. Schuster, one of the guarantors, all without notice to or the consent of appellee. The trial amendment contained other allegations not material here. The appellant objected to the filing of the trial amendment, but his objections were overruled, whereupon he filed a reply to the same. Thereupon the trial proceeded, and the jury, after instruction, returned a general verdict for the appellee upon both counts of the complaint. Judgment was entered upon the verdict, from which this appeal is prosecuted.
[1] Appellant has filed 42 assignments of error, and, as is usually the case where a great number of errors are assigned, very few are discussed in such a manner as to render the court any real assistance. We shall not undertake to consider them all. The first to which we will refer is the alleged error on the part of the court in permitting appellee to file the trial amendment. It is contended that this action was improper because the trial amendment stated an entirely new defense, and that it could not be filed under the provisions of section 4162, Code 1915. This statute is much like that Missouri statute upon the same subject, and the courts of that state uniformly hold that, where such an amendment is improperly allowed, it is the duty of the complaining party to either object to the filing or move to strike out such an amendment, and in the event such motion is ruled against him, to...
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