City Loan & Trust Co. v. Sterner , 57 Tex. Civ. App. 517 ( 1909 )

J. D. Sterner, as plaintiff, recovered judgment for six thousand eight hundred and fifty-eight dollars and eighty cents against defendants, the City Loan Trust Company and E. B. Blanton, on a promissory note executed by defendants. The judgment further decreed a foreclosure of lien upon certain vendor's lien notes held by plaintiff as collateral security for the note sued on, and from this judgment defendants have appealed.

The case was first called for trial on December 22, 1908, at which time defendants applied for a postponement of the trial on account of the absence of defendant E. B. Blanton, and upon such application the trial was postponed to January 18, 1909. Upon the last named date the case was again called for trial, and again defendants moved for a postponement on account of the absence of E. B. Blanton, but this application was overruled and this ruling is assigned as error. This application was supported by the affidavit of defendants' counsel, containing the statement that E. B. Blanton was president and sole manager of defendant company; that counsel needed his presence and assistance in conducting the defense, and that counsel had just received a telegram from Blanton to the effect that it was impossible for him to be present at the trial, on account of sickness in his family. Blanton had testified fully by depositions which were introduced in evidence upon the trial. The record fails to show any affidavit from any source that the statement contained in the telegram was true, or that by reason of Blanton's absence during the trial his counsel was unable to fully develop the defenses to plaintiff's suit, and the court committed no error in refusing the application for a postponement of the trial. (Hunt v. Makemson, 56 Tex. 9; Berry v. Burnett, 23 Texas Civ. App. 558[23 Tex. Civ. App. 558]; Bond v. Natl. Exc. Bank of Dallas,53 S.W. 71; Finn v. Krutt, 13 Texas Civ. App. 36[13 Tex. Civ. App. 36].)

Neither did the court err in refusing defendants a trial by jury, as complained of in appellants' second assignment of error. When the case was called on December 22, 1908, and after it was postponed and set for January 18, 1909, defendants' counsel paid the jury fee requisite to have the case placed on the jury docket, but no demand was then made of the court for a trial by jury, and the matter was not called to the attention of the court until after the case was regularly called for trial on the nonjury docket on January 18, 1909. In an explanation attached to the certificate of the trial judge in approving defendants' bill of exceptions to this ruling, it appears that plaintiff lived in a distant State and had twice journeyed from his home to Stephenville to attend the trial, the former occasion being on December 22, 1908, when the trial was postponed over his protest. The jury docket had been assigned for subsequent weeks of the term, and to have granted this demand for a jury trial would have resulted in a postponement to some subsequent week, and perhaps the necessity of another trip to the State by plaintiff to attend the trial. The statutes have prescribed certain regulations governing parties who desire trials of civil cases by a jury, and whenever it is shown that to comply with a demand for a jury trial, in the absence of a compliance with those regulations, will materially affect the rights of the opposing party, the demand should be refused. (Sayles' Civil Statutes, art. 3189; Hunt v. Makemson, 56 Tex. 9; Cabell v. Hamilton Brown Shoe Co., 81 Tex. 104; Petri v. First Natl. Bank,83 Tex. 424; Cruger v. McCracken, 26 S.W. 282.)

Appellants' third assignment of error is as follows: "The court erred in not sustaining the plea in abatement interposed by the defendants, the City Loan Trust Company and E. B. Blanton, because the overwhelming weight of the evidence shows that the plaintiff's suit was prematurely brought and that a right of action did not accrue to plaintiff until January 1, 1909."

The trial court filed findings of fact, one of which was to the effect that the note sued on matured January 1, 1908, and that the time of its payment was never extended by any valid or binding agreement between the parties thereto. Upon the decisions in Sup. Council American L. of H. v. Storey,75 S.W. 905; Bandy v. Cates, 44 Texas Civ. App. 38[44 Tex. Civ. App. 38]; Best v. Kirkendall, 107 S.W. 932, 933, appellee insists that appellants' third assignment above quoted can not be considered, in view of the fact that appellants filed no assignment attacking the findings of the court above referred to, and we are of the opinion that the contention is well taken. However, if we are in error in this holding we are of the opinion that appellants' third assignment should be overruled in view of the fact that there was abundant evidence to support the action of the court in overruling the plea in abatement. The note sued on was by its terms made payable January 1, 1908. The suit was instituted September 14, 1908. Appellants pleaded that Sterner had agreed with appellants that the time of payment of the note should be extended to January 1, 1909. Appellants introduced in evidence a letter written by Sterner, of date November 11, 1907, containing the following: "In reference to this note, as stated in previous letter, I am willing you should pay the interest when due, and extend the time of payment until January 1, 1909." Appellants failed to pay this interest on January 1, 1908, but did pay it March 23, 1908, and appellant E. B. Blanton testified that on March 23, 1908, Sterner agreed to an extension of the note until January 1, 1909. He further testified that he did not remember whether anything was said at that time about reserving the privilege to pay the note before January 1, 1909, but it was his impression that he did say something to Sterner about selling the collateral notes and taking up the note sued on. This testimony of Blanton was flatly contradicted by Sterner, and the letter written by Sterner above quoted did not sustain the plea in abatement, as the interest was not paid when due.

By their fourth assignment appellants contend that the court erred in not foreclosing the vendor's liens retained in the collateral notes instead of foreclosing the lien upon those notes and ordering them sold to satisfy plaintiff's judgment against appellants. The court found that the collateral notes were not due. These findings seem supported by the evidence, and appellants have presented no assignment challenging their correctness. The fourth assignment of error is therefore overruled.

We have found no error in the judgment and it is affirmed.

Affirmed.

Writ of error refused.