Stephens v. Anson Motor Co.
| Decision Date | 08 November 1929 |
| Docket Number | (No. 618.) |
| Citation | 21 S.W.2d 699 |
| Parties | STEPHENS v. ANSON MOTOR CO. |
| Court | Texas Court of Appeals |
Appeal from Taylor County Court; Tom K. Eplen, Judge.
Action by the Anson Motor Company against J. A. Stephens. Judgment for plaintiff, and defendant appeals. Affirmed.
Smith & Smith, of Anson, for appellant.
Lee R. York, of Abilene, for appellee.
The Anson Motor Company, a partnership, filed this suit against J. A. Stephens to recover the unpaid balance on a note for $394.95, and to foreclose a chattel mortgage securing the same. The defendant answered by plea of non est factum, and specially alleged a material alteration of the note after its execution.
The plaintiff, by supplemental petition, replied, denying the materiality of any alteration in the note, and in the alternative alleged that, if such alteration had been made, the same was done innocently and without any intention to defraud the maker, and sought a recovery in any event of the balance of the original debt.
Trial was before the court and jury, and upon special issues judgment was rendered in favor of the plaintiff for the unpaid balance of the original debt, and a foreclosure of the mortgage securing the note was denied. The defendant has appealed and seeks to defeat any recovery whatever, either on the note or balance of the original indebtedness.
Complaining of the matters set up in the supplemental petition, appellant's fourth proposition is to the effect that a defect in the original petition or omission therein cannot be supplied by a supplemental petition. As an abstract proposition of law, this is correct. Crescent Ins. Co. v. Camp, 64 Tex. 521; Fink v. San Augustine Gro. Co. (Tex. Civ. App.) 167 S. W. 35; Burger v. Ray (Tex. Civ. App.) 239 S. W. 257; Townes Pleadings (2d Ed.) p. 447 et seq. However, there is nothing in this record presenting the question that the court failed to observe the rule. No question as to the functions and legitimate contents of a supplemental petition was suggested in the defendant's objection to the filing of that instrument; the sole objection thereto made being that, "after plaintiff and defendant had each announced ready for trial the court permitted the plaintiff, over the objections of the defendant, to file its supplemental petition," etc.
The objection was general, and could have been made to the filing of any supplemental petition filed after announcement for trial, however proper the filing of such pleading might have been. It was in the discretion of the trial court to permit the pleading to be filed, and no abuse of that discretion is shown by the specific objection made, and we are not permitted to consider questions or objections not raised at the trial. The defendant did not claim that the filing of the supplemental petition took him by surprise and therefore prejudiced his rights, nor did he claim the right of a continuance on that ground, as he might have done under rule 16 for district and county courts. 142 S. W. xviii.
The alleged material alteration is based on a change made in the amount for which defendant Stephens executed his note to...
To continue reading
Request your trial
-
Lampe v. Franklin American Trust Co.
...173, 52 N.W. 883; First Natl. Bank v. Yowell, 155 Tenn. 430, 294 S.W. 1101; McCannon & Co. v. Brown, 169 Ark. 954, 277 S.W. 539; Stevens v. Austin, 21 S.W.2d 699; Wright v. Austin, 1 S.W.2d 703; Phillip Mfg. Co. v. Austin, 58 W.Va. 189, 52 S.E. 515. (c) The negotiable instrument statute can......
-
Texas & P. Ry. Co. v. Presley
...U. & G. R. Co. v. Johnson et al., Tex.Civ.App., 1 S.W.2d 350; Bradley v. Fagala, Tex.Civ.App., 25 S.W.2d 255; Stephens v. Anson Motor Co., Tex.Civ. App., 21 S.W.2d 699; Thompson v. Caldwell, Tex.Civ.App., 22 S.W.2d 720; Atlas Metal Works v. City of Dallas, Tex.Civ. App., 30 S.W.2d 431, 432;......
-
Panhandle & S. F. Ry. Co. v. Montgomery
...al., Tex.Civ.App., 62 S.W.2d 668; St. Louis Southwestern R. Co. of Texas v. Larkin, Tex.Civ.App., 34 S.W. 2d 693; Stephens v. Anson Motor Co., Tex. Civ.App., 21 S.W.2d 699. In this connection it has been repeatedly held that in the absence of an exception a supplemental petition may be cons......