Grisham v. Connell Lumber Co. , 1914 Tex. App. LEXIS 1310 ( 1914 )

The Connell Lumber Company filed this suit in the justice court of Martin county against M. A. Grisham, on a promissory note for $150 interest and attorney's fees. Grisham impleaded J. C. Chambers, and alleged that said Chambers had assumed the payment of the note. Upon motion of J. C. Chambers filed in justice court, suit dismissed as to him and cause there tried between the lumber company and M. A. Grisham, the original maker of the note. Plaintiff asked judgment for the face of the note, interest, and attorney's fees. Defendant Grisham pleaded general demurrer, special exceptions: (a) That, the note showing upon its face that it was secured by lien on land, therefore the justice court had no jurisdiction; (b) the note shows upon its face that J. C. Chambers assumed the payment — was therefore a necessary party to the suit. Pleaded payment, etc., and other matters of defense not necessary to detail in the present condition of the record.

The appellant suggests as fundamental error and urges under his first assignment that a judgment is void when rendered for a company without naming the parties composing same. The record before the court does not support the proposition. The record reveals the fact that the appellee is a corporation. There is no plea in abatement raising the question, and no evidence that the plaintiff is a company. It will be presumed that plaintiff is a corporation where the question is raised for the first time on appeal. Hunter v. W. J. Lemp Brewing Co., 46 S.W. 371.

The sixth assignment being out of its order in the brief as required by rule 29 (142 S.W. xii), we are not required to notice it; but, since it complains of the peremptory charge of the court to find for plaintiff, and refers this court to the propositions and statements under first assignment, it is disposed of by what has been said next above.

The second assignment of error charges that the trial court erred in overruling defendant's special exceptions, to the effect that the note sued on shows upon its face that it is secured by deed of trust on land, therefore the justice court was without jurisdiction, and that the note shows upon its face that J. C. Chambers has assumed the payment of it. The facts as they appear in the record are: That appellant, M. A. Grisham, was the original maker of the note, i. e., he is the only person whose signature is attached to it. Upon the face of the note, it appears, some person had written with lead pencil, "This note is secured by a deed of trust. J. C. Chambers has assumed payment of same." The record does not reveal by whom this was written, nor whether, in fact, it is legally any part of the note. If this notation was in any way a defensive matter to the collection of the note as against defendant, it was incumbent upon him to plead and prove it.

The trial court, therefore, did not err in instructing a verdict in favor of the plaintiff as against the appellant, who was the maker of the note; for, there being nothing to show that Chambers was liable on it, either as maker or indorser, he was not a necessary or proper party to the suit.

The other assignments complain that appellee failed to introduce transcript from justice court in evidence as a preliminary step to giving jurisdiction. The transcript filed in this court shows that a sufficient transcript of the proceedings in the justice court was on file with the clerk of the county court when this cause was tried, which was sufficient to give such court appellate jurisdiction.

It is unnecessary to pass upon appellee's cross-assignment

Affirmed.