Sharpe v. National Bank of Commerce

• Decision Date: 15 April 1925
• Docket Number: (No. 7338.)
• Citation: 272 S.W. 321
• Parties: SHARPE et al. v. NATIONAL BANK OF COMMERCE.
• Court: Texas Court of Appeals

Page 321

272 S.W. 321

SHARPE et al. v. NATIONAL BANK OF COMMERCE.

(No. 7338.)

Court of Civil Appeals of Texas. San Antonio.

April 15, 1925.

Rehearing Denied May 13, 1925.

Appeal from Tarrant County Court for Civil Cases; H. O. Gossett, Judge.

Action by the National Bank of Commerce against A. V. Sharpe and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Frank R. Graves, of Fort Worth, for appellants.

Phillips, Brown & Morris, of Fort Worth, for appellee.

COBBS, J.

Appellee sued appellants to recover on a joint promissory note, signed by A. V. Sharpe and Mike Sharpe, dated September 17, 1919, for $500, due 90 days after date, payable to appellee, with 10 per cent. interest after maturity, together with the usual 10 per cent. clause for attorney's fees. The note had a clause therein that:

"All signers and indorsers of this note are to be regarded as principals so far as their liability to payee is concerned and each of us (including indorsers) waive presentation hereof for payment, protest and notice of nonpayment, and I, we and each of us (including indorsers) consent that the payee or other owner of this note may at any time, and from time to time, upon request of or by agreement with any of us, extend the date of maturity hereof without consulting the other signers or indorsers who shall remain bound for the payment thereof. We and each of us (including indorsers) agree that in case of renewal or extension of maturity of this note, any and all securities or liens given the payee by us or any of us at any time shall remain in full force and effect as security for payment of the renewed or extended note."

A. V. Sharpe was cited by publication, because his residence was not known, though a citizen of and resident of the state of Texas. It was ascertained afterwards that he was residing in Dallas, Tex. Nn personal service was had on him, and he did not answer in the case, but during the trial he appeared and testified in behalf of his codefendant. He filed no answer nor made any appearance. The court appointed no attorney to represent him.

The answer of Mike Sharpe was that he was the accommodation maker of the note as a surety; that at the original maturity of the note he demanded, in writing, that the payee institute suit immediately to enforce the collection of the said note, which was ignored, and no suit filed at the next term of the court, nor at any succeeding term after delivery of said written notice. That A. V. Sharpe delivered to the payee additional security which was released and returned to his codefendant, A. V. Sharpe, without his consent. That when the note matured, Mike Sharpe refused to agree to the extension of the time of the payment, and insisted that payee bring suit to collect the note. The note was extended upon a request and consideration paid by A. V. Sharpe.

Appellant Mike Sharpe asked leave to amend his answer to show that he executed the note as a surety, which the court declined to let him do.

The case was tried with a jury, and the court instructed the jury to return a verdict against appellants jointly and severally for the sum of $756.25. That part of the judgment of the court which contains the recitals covering the jurisdictional question is as follows:

"Now on this the 5th day of October, 1923, same being a regular day of the present term of the county court for civil cases, of Tarrant county, Tex., came on to be heard the above styled and numbered cause, when came the plaintiff by its attorneys of record, and also came the defendant Mike Sharpe in his own proper person, and by attorney of record, all of which announced ready for trial, and the defendant A. V. Sharpe did not appear and made no announcement in said cause, and, it appearing to the court that the defendant A. V. Sharpe had been duly cited by publication, as required by law, the court proceeded to hear and determine said cause, whereupon came a jury of six good and lawful men, to wit, J. C. Jones and five others, who were duly selected and were sworn to try said cause, and it appearing upon the trial of said cause that the defendant A. V. Sharpe admitted under his oath as a witness that he was a resident of the state of Texas, and had resided in said state in Dallas, Dallas county, Tex., during all of the time that the citation by publication was published, and that he, the said A. V. Sharpe, had not filed any answer in said cause, and that he had no defense to offer in the trial of the same, and the court, having heard the evidence submitted on the trial of said cause, and having been fully advised in the premises, is of the opinion that the plaintiff is entitled to an instructed verdict."

The first assignment complains that the court erred in not permitting the amendment to be filed after all parties had announced ready for trial. Such matters are entirely within the discretion of the trial judge, and an inspection of his reasons indorsed on the bill of exceptions, explanatory of his ruling, shows no error or abuse of discretion.

The second assignment complains of the refusal of the court to allow Mike Sharpe to testify concerning the facts relating to the reason why he signed the note to secure the loan of the money to A. V. Sharpe, and that he signed it with the understanding that A. V. Sharpe was to give as security 1,105 acres of land in Cherokee county. That at maturity of the note he requested, in writing, that suit be brought to collect the money. Thereafter tendered to...