Texas Fidelity & Bonding Co. v. First State Bank

Decision Date25 May 1912
Citation149 S.W. 779
PartiesTEXAS FIDELITY & BONDING CO. v. FIRST STATE BANK OF CHANNING et al.<SMALL><SUP>†</SUP></SMALL>
CourtTexas Court of Appeals

Appeal from District Court, Dallam County; D. B. Hill, Judge.

Action by the First State Bank of Channing against J. J. Morris and others. From a judgment against Morris and the Texas Fidelity & Bonding Company, surety on the replevin bond given in the action by Morris, said company appeals. Affirmed.

Clifford Braly and W. B. Chauncey, both of Dalhart, for appellant. Durrell Miller, of Channing, and P. B. Cox, of Wichita Falls, for appellees.

GRAHAM, C. J.

The record in this case shows that on June 10, 1911, the First State Bank of Channing filed suit in the district court of Dallam county against J. J. Morris and his wife, Belle Morris, for the principal, interest, and attorney's fees alleged to be due on a certain promissory note, and on proper affidavit and bond the plaintiff caused a writ of attachment to be issued and levied on certain property of the defendant J. J. Morris; that on the 14th day of June, 1911, J. J. Morris, as principal, and the Texas Fidelity & Bonding Company, as his surety, executed and delivered a statutory replevy bond in the sum of $1,500, and that the property which had been levied upon under the writ of attachment was thereupon delivered by the officer making the levy to said J. J. Morris.

The record further shows that on August 25, 1911, certain of the creditors of said J. J. Morris, filed in the United States District Court for the Northern District of Texas their petition to have said J. J. Morris declared a bankrupt.

The record also shows that on September 5, 1911, the district court of Dallam county rendered judgment in favor of the First State Bank of Channing against J. J. Morris for the principal, interest, and attorney's fees found to be due on the note sued on in the sum of $1,283.30, and also at the same time rendered judgment on said replevy bond in favor of the First State Bank of Channing against J. J. Morris, as principal, and the Texas Fidelity & Bonding Company, as surety, for the sum of $1,283.30; it being further adjudged that plaintiff below take nothing by virtue of its suit as against Belle Morris.

The record further shows that neither of the defendants below, nor the bonding company, at the time the judgment was rendered, had filed an answer in the cause, or made any appearance or defense therein, though a practicing lawyer at that bar did orally state to the court, just prior to the rendition of the judgment, that a petition in involuntary bankruptcy against said J. J. Morris had been filed, though nothing further than this was done or said by any person or firm in any way connected with the alleged bankrupt or his estate.

The record shows that on September 15, 1911, the said J. J. Morris was duly and legally declared a bankrupt, and on September 27, 1911, the bonding company filed in the district court of Dallam county, in this cause, its motion or petition for a new trial, based on the legal propositions that the trial court was bound to take notice of the bankruptcy proceeding then pending against J. J. Morris, and was therefore without power to render the judgment for debt against him, and for the same reason was without power to render judgment against Morris and the bonding company on the replevy bond; facts being alleged on which these contentions were based. The court heard evidence in support of and against said motion, and on October 14, 1911, in all things overruled the motion.

The record shows that the bonding company alone prosecutes an appeal from said judgment and proceedings, and submits the case in this court on two assignments of error, as follows:

"(1) The court erred in retaining jurisdiction and originally rendering judgment in this cause against defendant J. J. Morris for plaintiff's debt, and against the defendants J. J. Morris and the Texas Fidelity & Bonding Company as principal and surety, respectively, on the replevy bond, because at the date of the trial of this cause and date of rendition of said judgment a petition to have the said J. J. Morris declared an involuntary...

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7 cases
  • Servall Automobile Service, Inc. v. McDuffie
    • United States
    • Arizona Supreme Court
    • December 18, 1934
    ... ... A creditor has a right to sue his debtor. State ... courts have jurisdiction of the persons of ... Heinrichs, 133 ... Wash. 7, 233 P. 23; Texas Fidelity & Bonding Co. v ... First State Bank, ... ...
  • Harvey Company Limited v. Braden
    • United States
    • Texas Court of Appeals
    • January 23, 1924
    ...S. W. 848; Morgan Bros. v. Dayton Coal & Iron Co., 134 Tenn. 228, 183 S. W. 1019, Ann. Cas. 1917E, 42; Texas F. & B. Co. v. First State Bank of Channing (Tex. Civ. App.) 149 S. W. 779; Rennebaum v. Atkinson (Ky.) 52 S. W. 828. Merely the beginning of bankruptcy proceedings will not defeat t......
  • Guar. Sec. Corp. v. Oppenheimer
    • United States
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    • January 4, 1923
    ...Ormsby, 18 R. I. 309, 27 Atl. 216;Knapp v. Anderson, 71 N. Y. 466;McCombs v. Allen, 82 N. Y. 114;Texas Fidelity & Bounding Co. v. First State Bank of Channing (Tex. Civ. App.) 149 S. W. 779. Exceptions ...
  • Fidelity & Deposit Co. v. Shepherd
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    • U.S. Court of Appeals — District of Columbia Circuit
    • March 1, 1926
    ...v. Rialto Grain Co., 83 S. W. 781, 108 Mo. App. 479; Gould v. McLaughlin, 122 Me. 569, 120 A. 426; Texas Fidelity & Bonding Co. v. First State Bank of Channing (Tex. Civ. App.) 149 S. W. 779; Jacobs & Co. v. Steiber, 97 A. 763, 90 Conn. 507; Brown v. Four-in-One Coal Co. (C. C. A.) 286 F. W......
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