*1 Tes.) y. DANNER WALKER-SMITH CO. signing appeared denied, Tire ob- it raises tlie issue assumed risk. but where of pa- that the defendants did jection in the twen- tó the referred to per, though they attempt plead even did not ty-sixth assignment cannot be sustained. prove. signed assignment pass impression. [17] We will not under such (cid:127) complaining Guaranty, cases, [Ed. of as excessive. the verdict Note.—Por other see Dig. 105, 106; Dig. Cent. §§ § 92.*] Dec. Having concluded to reverse the Guaranty Poegery — — necessary prop (§ 78*) grounds, on 7. other is not it Other Signers. er to do so. of of several fact name one indicated, the'judgment For errors signers where forged, of a of signers reversed and Cause remanded. none the other that he claimed signature on faith of such Reversed remanded. party guaranteed therewith, was not connected does not render the contract void to those signed. who Guaranty, cases, [Ed. see Note.—For other CO. DANNER et al. v. WALKER-SMITH Dig. 92; 91, Dig. Cent. §§ § 78.*] Dec. et al. Guaranty (§ 6*) Acceptance. 8. — guarantor It is no defense for a (Court Appeals of Civil Austin. Texas. party guaranteed accept the contract did not April 24, Appellees’ 1912. for Re- Motion guaranty, to him and where it was delivered hearing, 26, Appellants’ June 1912. Motion he acted thereon. Rehearing, 6, 1912. Rehear- Nov. Further ing Guaranty, 26, 1913.) cases, [Ed. Denied see Feb. Note.—For other Dig. 8; Dig. Gent. Dec. § § 6.*] Appeal Piling — (§ 773*) and Error 1. (§ 201*) Privileged Brief —Time—Dismissal. 9. Witnesses Communi — Attorney—Deposition. appeal will not be a An dismissed cations — party prove permit a mere failure to file brief in time where the It a was not error party injured thereby. other the other cross-examination attorney deposition to him a made eases, had read Appeal [Ed. Note.—Por other see prior proceedings case; in the matter not Error, Dig. 3108-3110; 3104, Cent. Dec. §§ being privileged at- a communication between Dig. 773.*] § torney and client. Judgment (§ 129*) 2. —Definition—Default. cases, Witnesses, [Ed. other see Note.—For defendants, In an action several Dig. 755; Dig. 754, § 201.*] Cent. Dec. §§ charged appear, where one did and the court plain- him, that, as to find for should Appellee’s On Motion defaulted, he because had tiff Appeal (§ 659*) Perfecting others, predi- Error 10. was cated him and — only upon verdict, judg- Record —Notice Counsel. was no there rehearing anything adjudicating where in both On issue courts an ment fendant de- defaulted; 'being a as t'o fault a final included whether who had consequences legal of several defendants the affirmation law argued courts, attending proved in both a writ of cer- had been of facts. or admitted state perfect tiorari will be awarded to cases, Judgment, [Ed. Note.—For other see had .show that Dig. 240; Dig. § § Cent. Dee. 129.* pro tunc. entered nunc Phrases, definitions, other see Words and Por Appeal cases, [Ed. other see Note.—For pp. 3827-3842; 8, pp. 7695, 7696.] vol. vol. Dig. Dig. Error, 2834-2843; § Dec. §§ Cent. Judg- Judgment (§ 399*) 3. Pinal —Joint 659.*] n Setting Aside. ment — Appeal (§ 1062*) provid- 11. and Error art. Rev. Civ. St. Under —Harmless Special only ing Error —Submission Issues. final shall be render- cause, setting It submit reversible error ed ment as aside of special goods issue, “How a and delivered and much were sold one of defendants sets the value all. same?” aside where a upon given and guaranteed the notes “Were Judgment, cases, Note.—Por other see [Ed. goods delivered?” was submitted Dig. Dig. 760; §§ § 399.*} Cent. Dee. persons an action answered Guaranty (§ 92*) Instructions—Assump 4. purchaser, and — the credit of the tion of Pact. was that the notes the uncontradicted evidence guarantors, In action where price given goods. were all defaulted, one of them also cases, Appeal see [Ed. other Note.—For guaranty, 'he 4212-4218; Error, 1062.*] Dig. Dig. §§ Dec. § Cent. directing find that did err signed the contract. Appeal cases, 882*) Estoppel Guaranty, (§ 12. and Error Note.—Por other see [Ed. — Allege — Dig. Dig. Error Admission § Dec. Evi §§ 92.*] Cent. dence. (§ 471*) Opinion Evidence- 5. Evidence — brought The admission evidence of Indebtedness. Questions by appellant cross-examination will not be manager of a mer- ground for reversal. company company indebt- cantile cases, Appeal other see [Ed. Note.—P'or a certain sum was not a ed statement Dig. 3591-3610; Error, 882.*] Dig. §§ § Cent. Dec. opinion fact. cases, Evidence, see Note.—For [Ed. 2149-2185; Dig. Appeal Dig. 471.*] §§ § Dec. Cent. 1050*) Error —Harmless (§ of Evidence. Error —Admission Guaranty (§ 92*) —Instructions—Plead reception of evidence Erroneous will not Proof. error, where other be reversible guarantor, an action an in- objection. admitted same fact was without if the 'believed struction defendant cases, Appeal guaranty, see [Ed. the contract of Note.—For find, thought Dig. Error, if he so even §§ should 4153-4157, Cent. error, recommendation, Dig. was not where § 1050.*] Dec. Dig. Dig. topic and in Dec. Key-No.
*For other cases see same
section NUMBER
& Am.
Series & Rep'r Indexes
*2
REPORTER
164 SOUTHWESTERN
guaranty.
you
Appellant’s
cuted said
this connection
Motion
On
are instructed
can and M. E.
E. Milli-
A.ppeal
that defendants
E.
(§ 1173*)
and Error
—Reversal-
Coparties.
deny
exe-
Several
Trimble do not
as to
A
remand
new
reversal and
guaranty,
your
cution of the
duty
and it
be
will
appellants requires
a reversal
plain-
to render a
verdict
favor of
them,
art.
St.
to all of
under Rev. Civ.
against
jury
1997, providing
tiffs and
shall be but
said defendants.” The
that there
any cause, but,
where some
against
returned a .verdict
appealed
cause
and the
below have
on,'
for the debt
also
and
acquiescence
of
judgment
ance,
is
their
action
severable.,
follows:
voluntary
“We find in
favor
defendants
sever-
as a
will be considered
affirmed
Winans,
Austin,
will be
Patterson,
E. H.
B.
Eli
M.
appealed.
them, though
reversed as to those
Landers,
Walton,
Danner,
A. K.
A. J.
Appeal
cases,
and
see
[Ed.
other
Note.—For
Plarrison,
Fry,
W. B.
John J.
and A. Jen-
J.
Dig.
Dig.
Error,
1173.*]
Dec.
Cent.
§§ 4662—
plaintiff
kins. We also find in favor of
and
against defendants
E. Millican and M.
E.
(§
70*)
15. Constitutional
Law
—Judicial
op
$7,288.71
E. Trimble for the sum of
on the
Statute.
Functions —Wisdom
folly
The wisdom or
guaranty.”
Judgment
of a
statute is
con- contract of
was enter-
courts,
Legislature only.
cern of the
but is for the
against
ed on this verdict
the Mercantile
cases,
Constitu
see
other
[Ed. Note.—For
Millican,
E. E.
and M. E. Trimble
Law,
Dig.
129-132,
Dec.
§§
tional
Cent.
jury
for the amount found
and
Dig.
also
§ 70.*]
E. E.
—
Millican and C. H. Millican
Weight
—
(§ 194*)
1C. Trial
Instructions
op
foreclosure of
lien on land
attachment
Evidence.
one side
on
Where there was evidence
judgment.
described in said
Walker-Smith
appeared
contract
M.
the name
be his
had admitted
self testified that
struction
contract was
dence.
trial,
filed a motion for a
and
new
signature,
M.
another witness
and
signed it,
M. him- asked that
while
favor of the
signed it,
in-
he had not
named,
fendants
above
whose favor the
to the
his name
M.
to find that
jury had returned said
set aside.
verdict be
weight of evi-
as on the
erroneous
day
July
May
3d,
term,
On
of said
granted
Trial,
cases,
the court
judgment
motion and entered
Cent.
said
see
[Ed. Note.—For other
456^66; Dec,
446-^54,
Dig.
439-441,
jury
§§
“verdict of
on
Dig. § 194.*]
day
June, 1909,
the 26th
returned
(§
250*)
Trial
hereby,
—Instructions—Conform
filed in
by
case
and the same is
ity
Pleadings
and Evidence.
court, as to defendants E. H.
an issue
on
The court should not
Patterson,
Austin,
Landers,
pleadings or evidence. M. B.
A. K.
either the
not raised
Trial,
cases,
Cent.
Walton,
Danner,
see
other
H.
son,
B.
[Ed. Note.—For
W.
A. J.
W.
Harri-
Dig.
Dig.
584-586;
250.*]
§
Dec.
§§
Fry,
A.
be and
John J.
and J.
Jenkins
Court,
Appeal
Coun-
District
Br.own
hereby
aside,
is
and shall here-
set
Judge.
Goodwin,
ty;
John W.
naught;
,to
after be held for
and as
each and
Company and
by Walker-Smith
Action
plaintiff
all of said defendants
Walker-Smith
others.
Danner and
A.- J.
others
Judgment
granted
trial,
a new
and this
plaintiffs,
stands for trial in its order at the next
case
term of this court.” At
part,
part
peal.
and in
Affirmed in
reversed
the next
term the
remanded.
January
17, 1910,
court on
the defendant
Company brought
answer, pleading,
E. E. Millican
this suit
filed his
among
guaranty
things,
May term, 1909,
non
of the district
est factum to said
county against
18, 1910,
contract.
Milli-
June
of Brown
can
on three
filed a motion to set aside
to recover
each;
$2,500
nothing
promissory
notes for the sum of
There
others,
includ-
to show that
action
A. Danner
was taken
J.
alleged
Millican,
contract of on this motion.
On the same
E.
on
E.
filed,
guaranty,
Bat motion was
all of the
amendment
defendants who'
Landers,
alleged
guaranty,
Austin,
H. Millican to
and O.
D. C.
prop- including
Millican,
attached as the
on lands
E. E.
filed
lien
a written mo-
foreclose
erty
Landers,
E.
and E.
A. K.
tion for continuance on
of Eli
account
the ab-
witnesses,
Millican,
attachment
also to foreclose
sence of material
and said motion
E. Millican. The defendants was
and the case
was continued. At
lien
succeeding
(May term,
and M.
term
the
1910)
of the court
Robert.Lee
Trimble
again
ju-
The other de-
no answers.
this case was
tried before a
Millican,
ry.
among
court,
fendants,
things,
E. E.
answered
instruct-
May term,
court. Those who
ed the
as follows: “There is no
guar-
plaintiff
this case between
and the Rob-
were sued
anty pleaded
On June 23
est factum.
ert Lee Mercantile
plaintiff
non
or between
jury.
M.
case was tried
E. Trimble. The
before
plaintiff
among
things,
issue in this
othei
instructed
case
between
Walk-
H.
The.
n
will find for
er-Smith
and A. K.
follows: “You
W.
J;
defendants,
Harrison,
A. J.
B.
W.
John
you may
Jenkins,
find
exe-
E. H. 'Wi-
topic
Dig.
Dig. Key-No.
Rep’r
see same
and section NUMBER Deo.
&
Series &
oases
Am.
Indexes
*For other
DANNER, y
Tex.)
CO.
WALKER-SMITH
open
tlie
then'and there
nans,
Eli Austin on
B.
excepted.”
pleas
guaranty contract,
grows out of the
denying
On
ex-
June
the case
submitted
last-named defendants
peremptory
They
guaranty.”
in-
instructions
were then
ecution of said
issues.
find
of said defend-
structed to
ants,
*3
Peremptory
against
contract;
(1)
signed
and
instructions
if
Special
E.'Millican,
they
against
on the notes.
E.
also
to find for foreclosure
found
3, 4, 5,
8,
10,
9,
issues Nos.
and 11 sub-
lien as
of attachment
separately
against
The
the issues
E.
H.
mitted
to whether
E.
and
Millican.
both
C.
Harrison,
Walton,
the
Ery,
jury
return
verdict
were instructed to
Jenkins, Winans,
Eli
and
Bat Austin and C. C. Landers.
favor of
signed
guaranty
being
agree,
jury
mis- Austin
there was a
contract.
unable to
1910).
(May,
No.13: “You will find that M. E. Trimble
does not show
trial
what was
ber
The record
upon.”
guaranty
case at
Decem-
done with the
term,
No. 14: “You will
that E. E. Millican
find
May term,
5, 1911, day
his name
of
to the contract
On June
upon.”
plaintiff
1911,
a motion to strike out
filed
favor,
wife, No. 15: “You will
and
return
verdict
E. Millican
his
the answer of
E.
of Bat Austin and
Landers.”
Millican,
D. C.
it
from the
C.' H.
“because
“You
in fa-
No. 16:
will return a verdict
and each of said
record of this court both
plaintiff
Millican,
parties
adjudged
vor of
and
H.
and
C.
and
to have
were found
interlocutory
E.
and C.
herein,
foreclose
E. Millican
and
made default
plaintiff’s
Millican,
lien,”
by
H.
by
attachment
court
ment
default was entered
scribing
property
the land
as the
levied
and
both
full
each of
which
Upon
of E. E. Millican.
still in
force
effect.”
and
jury
day
May
1911,
found that the
mentioned
motion,
term,
of
special
3, 4, 5, 6, 7, 8, 10,
following judgment,
issues Nos.
and
omit-
court entered
June,
part:
day
11
tract sued
each
name to
ting
of
formal
5th
“On the
on.
issue
answer
1911,
A.
motion of defendant
was heard and considered
D.
No.
E. H.
did not
found that
Winans
E. E. Millican
set
name to
As to the
said contract.
judgment by
at
aside the
default heretofore
(cid:127) Millican,
Millican,
H.
defendants E. E.
Bat
found
C.
May term,
court,
A.
day
D.
Landers,
jury
Austin,
and D.
O.
wit,
June,
A. D.
ren-
the 23d
of
by
Judgment
as instructed
the court.
him
and entered in
cause
dered
in accordance with this ver-
rendered
Millican,
the said
as well
mo-
as the
15, 1911, E. Millican filed
dict.
June
E.
On
tion of Walker-Smith
to strike out
original
motion in lieu of his
amended
the answer of defendant
E. Millican filed
E..
filed on June
set aside
motion
in this case since
herein
default
and
herein
vacate
against him,
was rendered
as aforesaid.
re-
him on June
1909. Plaintiff
And,
having
heard both said mo-
exceptions
and
this motion
sisted
argument
therein,
tions and the
is
of counsel
E,
allegations
fact.
Millican
E.
filed
considered, ordered,
the court
and ad-
plaintiff’s
motion,
contest of said
answer to
judged
exceptions
plaintiff
that the
alleged, among
things,
wherein
motion of
and the same
tained;
defendant
should be
entered
ever
hereby by
the court sus-
the one
the verdict
defendant,
said E. E. Millican
June, 1909,
on
set aside
26th
having
amend,
declined to
and elected to
exceptions
Plaintiff’s
the court.
motion,
his said
stand on
it is further
E. Millican’s motion to set aside the
E.
considered, ordered,
adjudged
court
said motion should
by, by
him
were sus-
be,
is here-
out,
was stricken
tained and
motion
dismissed,
the court
to which action
the said Millican
of the court
which action
ruling
and
lican then and
And it is further
of the court defendant E. E. Mil-
preserved
excepted,
a record as to same
open
excepted.
there
exceptions.
The defendants Lan-
bill
considered,
the court
or-
Harrison,
Millican, Walton,
ders,
E.
Dan-
E.
dered,
adjudged
the motion of
Jenkins,
Austin, Pry,
ner,
and Patterson
plaintiff
to strike
trial,
a new
which was
motion for
filed their
out the said answer of defendant said E. E.
perfected
overruled, and
their
be,
hereby by
Millican
the same
the peal
court.
to this
court, granted
striking
to the extent
plea
Anderson,
Angelo,
A.'
of San
B.
non est factum in said an-
Snodgrass
Coleman,
Kemp,
Dibrell,
&
swer contained. And it is
therefore
Wayman,
appellants.
considered,
Harrison &
ordered,
adjudged
court
the said
swer be
Brownwood,
appellees.
plea
non est factum in said an-
hereby by
the same is
the court
(after stating
JENKINS,
stricken out
from the files of this
J.
the facts as
ruling
Appellees
last
above),
of the court
mo-
defendant
have filed a
[t]
154 SOUTHWESTERN REPORTER
came
fendants E. H.
in June
is well
We
Hempel,
injury
being regularly
B. El. Millican in
en,
sonance with the administration of
brief,
even
has
this rule. To dismiss a case because a brief
pellate
general rule,
state
with
mitted for a
er the
before the ease was submitted in the
pellee
file his brief in
with,
ord was taken from said court was
ther time in which to
poned,
this case
then asked if
Appellees
they
case was
brief,
passing
in
fect the record
plied
record was then sent to the clerk
attorneys
delayed
by
torneys
Appellees’ attorneys
by appellants
son torneys
tails in reference to this
of
torneys
ed brief with the clerk of the district court answer
On
copy
motion
tion to
as
was
[2] 2. One of the contentions of
give
sufficient
consequence
93 Tex.
effect,
Brown
reason of the fact
quote
grounds
February
same.
ever,
have filed a written
though
not filed in time for them to
have,
it would in all instances insure the
business
if such
the-
record was filed in the
appeal
and at the same time
full
If
taken,
case;
court.
strike out
in
should be sustained.
to be served with a