Smith v. First Nat. Bank in Groveton, 11067.

• Decision Date: 12 December 1940
• Docket Number: No. 11067.,11067.
• Citation: 146 S.W.2d 270
• Parties: SMITH v. FIRST NAT. BANK IN GROVETON.
• Court: Texas Court of Appeals

Page 270

146 S.W.2d 270

SMITH v. FIRST NAT. BANK IN GROVETON.

No. 11067.

Court of Civil Appeals of Texas. Galveston.

December 12, 1940.

Appeal from District Court, Trinity County; E. T. Murphy, Judge.

Suit by the First National Bank in Groveton against F. A. Smith to recover on certain partnership notes and defendant's guaranty of payment thereof. From judgment overruling his plea of privilege, defendant appeals.

Reversed and remanded, with instructions.

Adams & Morgan, of Crockett, for appellant.

Crow & Chessher, of Groveton, for appellee.

GRAVES, Judge.

This appeal is from a judgment of the Special Ninth District Court of Trinity County, of date January 13, 1940, overruling a plea of personal privilege of the defendant, F. A. Smith, in cause No. 6760 on the docket of such court, styled First National Bank in Groveton v. W. H. Moore et al., to be sued therein in Houston County, where he resided, rather than in Trinity County where the venue was laid.

The appellee concedes this to be a substantially correct statement of the nature and result of the suit, to-wit:

"On December 8, 1939, this suit was filed in the District Court of Trinity County by appellee, First National Bank in Groveton, against appellant, F. A. Smith, and W. H. Moore and John Moore, it being alleged by plaintiff that W. H. Moore and John Moore were partners, operating as J. S. Moore & Sons. W. H. Moore and John Moore were residents of Angelina County, Texas, and appellant, F. A. Smith, was a resident of Houston County, Texas. F. A. Smith promptly and timely filed his plea of privilege to be sued in Houston County; appellee promptly and timely filed its controverting affidavit to the plea of privilege, to which appellant excepted; and this issue was tried before the judge of the district court without a jury, on January 13, 1940, when judgment was rendered overruling the general demurrer and plea of privilege of appellant. To this action, appellant in open court excepted, gave notice of appeal, filed his appeal bond, and this is the appeal from that judgment.

"This is a suit upon two promissory notes, signed `J. S. Moore & Sons by W. H. Moore', both dated in 1938, and payable to the order of plaintiff, and being respectively for the sums of $6,000.00, and $3,500.00. These notes are as follows:

                                           "`$6000.00
                "`Groveton, Texas, Nov. 16, 1938
                

"`Four months after date, without grace, I, we, or either of us, as joint principals, promise to pay to the order of

"`First National Bank in Groveton

"`Six Thousand & No/100 ______ Dollars at the office of the First National Bank in Groveton, Groveton, Texas, with interest at the rate of eight per cent per annum from date until paid, and ten per cent attorney's fees (minimum fee of $10.00) if collected by law, or placed with attorneys for collection. Value received. The makers and endorsers of this note hereby waive demand, protest and notice of non-payment and consent to the extension of the same without notice. Full authority is hereby given said bank or other legal holder hereof, upon non-payment at maturity, to sell at any time thereafter any collateral pledged as security hereto, either at public or private sale without notice, and said bank or other legal holder hereof may become the purchaser of such collateral and have clear title thereto.

                  "`Due 3-16-39 No. 4625
                       "`Int paid to
                "`Security 4-11-39
                                  J. S. Moore & Sons
                                  By W. H. Moore
                               "`Credit
                    "`Date     Amount      Balance
                    ______________________________
                    ______________________________
                    ______________________________'
                                           "`$3500.00
                

"`Groveton, Texas, Nov. 16, 1938.

"`On Demand after date, without grace, I, we, or either of us, as joint principals, promise to pay to the order of

"`First National Bank in Groveton

"`Thirty five hundred and No/100 — Dollars at the office of the First National Bank in Groveton, Groveton, Texas, with interest at the rate of eight per cent per annum from date until paid, and ten per cent attorney's fees (minimum fee of $10.00) if collected by law, or placed with attorneys for collection. Value received. The makers and endorsers of this note hereby waive demand, protest and notice. Full authority is hereby given said bank or other legal holder hereof, upon non-payment at maturity, to sell at any time thereafter any collateral pledged as security hereto, either at public or private sale without notice, and said bank or other legal holder hereof may become the purchaser of such collateral and have clear title thereto.

                "`Due _____ No. 4626
                "`Security Int paid to 4-11-39
                                         J. S. Moore & Sons
                                         By W. H. Moore
                                "`Credit
                       "`Date     Amount       Balance
                        _______________________________
                        _______________________________
                        _______________________________'
                

"It will be noticed that they provide for eight per cent per annum interest, and for a ten per cent attorney's fees; and the suit is for the principal, interest, and attorney's fees due on the notes.

"The appellant, F. A. Smith, is sued upon the theory that, about June 17, 1935, J. S. Moore & Sons applied to plaintiff for a line of credit and for a loan of $10,000.00, and that F. A. Smith executed his written guarantee and suretyship for the loan of $10,000.00 and for a $10,000.00 line of credit, the alleged guarantee being as follows:

                                        "`Groveton, Texas
                                        "`June 17, 1935
                

"`First National Bank in Groveton

"`Groveton, Texas.

"`Dear Sirs: —

"`You have loaned J. S. Moore and Sons $10,000.00 and I hereby guarantee the payment of same, and any renewal of same or further extensions of credit.

                             "`Yours very truly
                                "`(Signed) F. A. Smith
                                  "`F. A. Smith.'
                

"Plaintiff alleges that the notes sued upon were loans and indebtedness incurred by J. S. Moore & Sons, made in the course of the alleged line of credit and in reliance upon the above-alleged guarantee of F. A. Smith.

"The controverting plea set forth the foregoing, and alleged that the notes sued on were written upon the printed forms of the Bank, that F. A. Smith was familiar with such forms and knew that all of the notes and indebtedness were payable in Trinity County, Texas, and that he contracted in writing to perform his alleged guarantee in Trinity County, Texas; that the notes sued on are a continuation of the alleged guarantee contract of F. A. Smith, and that this agreement and the notes sued on are but one and the same obligation, which is in writing to be performed in Trinity County, Texas. That for these reasons, Section 5 of Article 1995, R.C.S., is applicable, and the suit is maintainable in Trinity County, Texas. Appellee further pleaded that John Moore and W. H. Moore were partners, that the district court of Trinity County had venue of the suit as against them, and that F. A. Smith was a necessary party to said suit; and further, that F. A. Smith, by virtue of the alleged guarantee, became jointly and severally liable with John Moore, W. H. Moore, and J. S. Moore & Sons, upon these promissory notes; that the suit was instituted for recovery against all the defendants, jointly, as well as severally, and F. A. Smith was a necessary party thereto; that the suit was properly maintainable against the Moores, and F. A. Smith was a necessary party, and the district court of Trinity County had venue under Section 29a of Article 1995, R.C.S. Appellee further alleged that J. S. Moore & Sons is a partnership and association within the meaning of Section 23, Article 1995, R.C.S., upon a cause of action that arose in Trinity County, Texas, and that F. A. Smith is a necessary party to the suit."

This further résumé of what are deemed the most material if not the controlling features of the evidence heard below upon the issues thus joined by appellant's plea of privilege and the controverting affidavit of the appellee bank, taken from the former's brief, is thought to be correct, if not in fact without dispute:

"Upon the plea of privilege hearing, the defendant F. A. Smith, offered no evidence, and the evidence offered by appellee is contained in 37 pages of the Statement of Facts. Briefly, it was as follows: The notes sued on and signed `J. S. Moore & Sons, by W. H. Moore', and the...