First Nat. Bank of Merkel v. Thurmond ( 1913 )


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  • The First National Bank of Merkel has appealed from a judgment against it in favor of F. G. Thurmond, for himself and as guardian of the estate of P. M. Thurmond, a minor. There is no statement of facts in the record, but it appears from plaintiff's petition that the suit was upon a promissory note, alleged to have been executed by T. J. Coggin, C. N. Coggin, and J. J. Strange payable to plaintiff. It is further alleged in the petition that after maturity of the note defendant T. J. Coggin authorized plaintiff to draw a draft upon appellant bank for the amount of principal and interest then due on the note; that thereafter, when plaintiff inquired of the president of the bank if T. J. Coggin had on deposit with the bank funds sufficient to pay the amount so due, said president made the following indorsement on the note: "September 11, 1908. You are hereby authorized to check upon the First National Bank of Merkel, Texas, for the amount of this note when you want it. [Signed] Geo. Berry, President." Plaintiff further alleged that, relying upon this guaranty of the payment of the note, he made no further effort at that time to collect the note. The judgment contains a recital that appellant had made default, although duly served with citation, but contains other recitals indicating that evidence was introduced to prove the plaintiff's cause of action. Prior to the date of the judgment appellant had filed an answer which seems to have been overlooked by the court at the time the judgment was rendered. The judgment contains the further recital that the plaintiff dismissed his suit as to the defendant C. N. Coggin and J. J. Strange who, as noted above, were alleged to be two of the principal makers of the note. There is no pleading in the record containing any allegation that either C. N. Coggin or J. J. Strange resided beyond the limits of the state, or that he could not be reached by the ordinary process of law, or that his residence was unknown, or that he was dead or Insolvent.

    On the original hearing we overruled all assignments of error presented in appellant's brief, and affirmed the judgment. But by motion for rehearing appellant invokes article 1897, Revised Civil Statutes 1911, and insists that by virtue of the terms of that article, and in the absence of any pleading of the character just noted, the judgment rendered against it was fundamentally erroneous. The article of the statutes referred to reads: "Where a suit is discontinued as to a principal obligor, no judgment can be rendered therein against an indorser, guarantor, surety or drawer of an accepted bill who is jointly sued, unless it is alleged and proven that such principal obligor resides beyond the limits of the state, or in such part of the same that he cannot be reached by the ordinary process of law, or that his residence is unknown and cannot be ascertained by the use of reasonable diligence, or that he is dead or actually or notoriously insolvent." We are of the opinion that this statute is mandatory, and that, in the absence of a pleading alleging the facts required by the statute, the judgment must be reversed. Breed v. Higginbotham Bros., 141 S.W. 164; Welch v. Phelps, 37 S.W. 175.

    For the reasons above indicated, the motion for rehearing is granted, the original opinion filed by us withdrawn, and the judgment reversed, and the cause remanded.

Document Info

Judges: Dunklin

Filed Date: 3/29/1913

Precedential Status: Precedential

Modified Date: 11/14/2024