Varn v. Arnold Hat Co.

• Decision Date: 22 December 1909
• Parties: VARN v. ARNOLD HAT CO.
• Court: Texas Court of Appeals

124 S.W. 693

VARN v. ARNOLD HAT CO.

Court of Civil Appeals of Texas.

December 22, 1909.

Rehearing Denied February 2, 1910.

Error from District Court, El Paso County; J. M. Goggin, Judge.

Action by the Arnold Hat Company against W. W. Varn. Judgment for plaintiff, and defendant brings error. Affirmed.

M. W. Stanton, for plaintiff in error. Robt. T. Neill, for defendant in error.

FLY, J.

This is a suit instituted by defendant in error against plaintiff in error, on a judgment recovered by it in the city court of Andalusia, Covington county, Ala., of March 5, 1908, for the sum of $842.25; the same being a joint judgment against plaintiff in error and A. T. Woodham. Judgment was asked on the Alabama judgment only against W. W. Varn, who lived in El Paso at the time this suit was instituted. Plaintiff in error answered by general and special demurrers and general denial. The cause was tried without a jury, and judgment rendered for the Arnold Hat Company in the sum of $880.18, being the principal, with 6 per cent. interest per annum from March 5, 1908, and all costs of suit.

The first and second assignments of error question the action of the court in overruling exceptions to the petition involving the right and power of defendant in error to institute suit against one party on a judgment of another state, in which judgment was rendered against the party sued jointly with another, who is not joined in the suit in this state, unless it is alleged that the joint debtor is beyond the jurisdiction of the court, is dead, or insolvent. We do not think the assignments should be sustained. The authorities cited by plaintiff are not applicable to the case under consideration. The Texas authorities hold a contrary doctrine to that asserted by plaintiff in error. Cook v. Phillips, 18 Tex. 31; Forbes v. Davis, 18 Tex. 268; Shipman v. Allee, 29 Tex. 17. The plaintiff in a suit is permitted, by statute, to discontinue as to one or more of several defendants (articles 1256-1259, Rev. St. 1895), and it is held in Wooters v. Smith, 56 Tex. 198: "Such being the rule in cases in which defendants have been joined in the suit and not cited, the same must be applied in a case in which some parties, who might have been made parties, are not joined. The object of the statute was to abolish the common-law rule, and such parties as are only liable as indorsers, guarantors, sureties, or drawers of accepted bills are protected from the operation of the rule thus established by articles 1257, 1258, 1259, Rev. St." That decision is cited with approval in Miller v. Sullivan, 89 Tex. 480, 35 S. W. 362, and Bute v. Brainerd, 93 Tex. 137, 53 S. W. 1017. The rule announced would apply to a suit on the judgment of another state, as well as to suits on contracts. No distinction can be drawn that would apply the rule as to joint and several obligations in contracts, and would not apply it to a judgment obtained on a contract which is made a basis of the suit. The basis of the suit in Alabama was an account against A. T. Woodham and W. W. Varn. On that account a judgment was rendered against the defendants for $842.25. At the time this suit was instituted Varn lived in El Paso county, and defendant in error was authorized to sue him alone on the judgment rendered against him and another in Alabama. Plaintiff in error made no effort to show that his rights were prejudiced by the failure to sue Woodham, and this court cannot indulge in speculations as to the possibility of the Alabama judgment having been paid off by the latter. Keesey v. Old, 82 Tex. 22, 17 S. W. 928.

A copy of the original judgment was attached to and made a part of the petition, and there is no merit in the contention as to there being a...