Sullivan v. First Nat. Bank

• Decision Date: 21 November 1904
• Citation: 83 S.W. 421
• Parties: SULLIVAN v. FIRST NAT. BANK OF FLATONIA.
• Court: Texas Court of Appeals

83 S.W. 421

SULLIVAN v. FIRST NAT. BANK OF FLATONIA.

Court of Civil Appeals of Texas.

November 21, 1904.

Appeal from District Court, Fayette County; L. W. Moore, Judge.

Action by the First National Bank of Flatonia against W. K. Sullivan. From a judgment for plaintiff, defendant appeals. Affirmed.

Duncan, Wolters & Lane, for appellant. Brown & Lane, for appellee.

GILL, J.

This suit was brought by the appellee bank against the appellant, Sullivan, to recover upon two promissory notes executed by him, aggregating the sum of $5,644.05. In addition to this sum, together with interest and attorney's fees, judgment was sought for $1,550.40, the aggregate amount paid out by the bank to keep alive three insurance policies on the life of Sullivan, which had been assigned to the bank as collateral security for the notes. This latter sum was alleged to have been paid by the bank at the instance and request of Sullivan, and it was agreed it should be charged to him. Sullivan does not question his liability on the notes, but resists the demand for the money paid out by the bank as premiums on the policies of insurance. A trial before the court resulted in a judgment for the bank for its entire demand. Sullivan has appealed, and assails the judgment upon two grounds: First, because the facts do not support the judgment for the premiums; and, second, because the court erred in overruling defendant's motion for continuance.

We overrule the first point without discussion. The facts are ample to sustain the judgment.

The second objection arises upon the following facts: On the day the cause was last called for trial the defendant, Sullivan, was sick at his home, about 20 miles from the courthouse. He was, however, represented by attorneys, who announced "Not ready for trial," and presented for the consideration of the court an application for continuance, in which it was alleged that one McCommon, the former president of the bank, was a witness on account of whose absence defendant could not safely go to trial. He had been duly served with process, which he had not theretofore disobeyed. The materiality of his testimony was disclosed. The plaintiff's illness and absence was not stated as a ground for continuance, and the body of the application showed it was made by telephone, affiant's name being signed by his attorney. This application contained the following jurat or certificate by the clerk of the court: "Sworn to and subscribed before me this 24th day of December, 1903, by calling defendant, W. K. Sullivan, to the telephone, and asking him whether the contents of the foregoing application for continuance which I had heard read to him over the 'phone by J. F. Wolters were true, to which he under oath answered in the affirmative, and stated he had authorized his attorney to sign his name for him." The court refused to consider the application on the ground that it could not be properly sworn to over the telephone. Counsel for Sullivan excepted, but made no further effort to procure a continuance of the cause. Upon the trial it was shown by definite testimony that the premiums were paid by the bank in the pursuance of an agreement with Sullivan to that effect, and judgment was rendered accordingly.

It is clear the judgment should stand unless the court erred in declining to consider the application for continuance. The statute requires that it should be sworn to. Rev St. 1895, art. 1276. The affidavit need not be made by the party to the litigation in whose behalf it is to be offered, but may be made by his agent or attorney having knowledge of the facts. Doll v. Mundine, 84 Tex. 315, 19 S. W. 374. An attorney may make it upon information, if he discloses the source and character of his information. It thus appears that the application by which a continuance may be procured has not been hedged about with difficulties, but its preparation rendered easy, even in the absence of the party most concerned. But it must, nevertheless, be sworn to, and this brings us to inquire into the formalities which must attend the administration of an oath. It is necessary to the validity of every oath or affirmation not alone that it shall be binding upon the conscience of the affiant, but that it be made under the pains and penalties of perjury. The man without a...