Southwest Nat. Bank v. Cates
| Decision Date | 13 March 1924 |
| Docket Number | (No. 58.) |
| Citation | 262 S.W. 569 |
| Parties | SOUTHWEST NAT. BANK OF DALLAS v. CATES. |
| Court | Texas Court of Appeals |
Rasbury, Adams & Harrell, of Dallas, for plaintiff in error.
On May 2, 1922, defendant in error filed suit in the district court of Bosque county against plaintiff in error, alleging that on January 14, 1922, he executed his note to plaintiff in error in the sum of $2,000 due February 13, 1922, and secured same by a mortgage on certain cattle, horses, and mules, fully described in the petition; that thereafter, about March 17, 1922, his brother, R. G. Cates, acting for himself and the defendant in error, and another brother, J. D. Cates, settled and paid in full said note by the sale and delivery to plaintiff in error of 89 head of live stock, consisting of various kinds of cattle, fully described in the petition, and that plaintiff in error accepted said cattle in full satisfaction and payment of said $2,000 note. Defendant in error alleged that plaintiff in error had refused to release the mortgage on his cattle and had advertised same for sale under the mortgage, and asked for a temporary injunction, restraining plaintiff in error from selling said stock, and on final hearing that the injunction be made permanent, canceling said note and mortgage and removing all cloud from the title of said cattle. Citation was issued, directed to the sheriff of Dallas county, commanding him to serve the Southwest National Bank of Dallas, Tex., a corporation, and the sheriff's return shows that same was executed on May 5th in Dallas county by delivering a copy of the citation with a certified copy of plaintiff's petition to Southwest National Bank of Dallas, Tex., a corporation, by delivering same to J. W. Royal, its vice president.
On June 8, 1922, plaintiff in error filed its motion in said cause, asking the court to dissolve the injunction because of the insufficiency of the bond that had been given, and because the allegations set forth in the plaintiff's petition were untrue, and denied all of the material allegations of plaintiff's application for an injunction, and prayed that the motion to dissolve be set for a day certain, and upon hearing the injunction be in all things dissolved. It does not appear from the record that any other proceedings were had in the trial court until the 4th of December, 1922, at which time the judgment final was rendered, which judgment states in part:
"The plaintiff appeared in person and by counsel and announced ready for trial, and the defendant, although having been duly and legally served and having filed an answer herein, appeared no further and was not present at trial either in person or by counsel, * * * and the court, after hearing the pleadings, the evidence, and argument of counsel, * * * is of the opinion that plaintiff is entitled to recover as prayed for."
The court rendered judgment as prayed for by plaintiff in his original petition.
On April 8, 1923, three months after adjournment of court at which the judgment was rendered, at the request of plaintiff in error, the trial court filed its findings of fact and conclusions of law. On May 28, 1923, plaintiff in error filed its petition for writ of error, and brings the cause to this court, and assigns fundamental error: First, that there was no proper service on the plaintiff in error; and second, that the defendant in error did not allege any cause of action in his petition — and then assigns error to the effect that the judgment is not supported by the testimony. There is no statement of facts in the record.
We have carefully examined the petition filed by the defendant in error, and cannot agree with the plaintiff in error that it does not state a cause of action. It alleges that a note had been executed by him, payable to plaintiff in error, and that same had been paid by the delivery to and acceptance by the bank of certain cattle, describing them. It is not a pleading of accord and satisfaction, but is an allegation of payment.
The judgment recites that the defendant was duly and legally served and...
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