273 S.W. 934 | Tex. App. | 1925
This suit was instituted by appellee against appellants, W. N. George and wife, Mrs. M. J. George, seeking judgment on a note executed by appellants in the sum of $575. Appellee alleged that appellant, Mrs. George, had obtained the removal of her marital disabilities on the 12th day of January, 1912, in the district court of Johnson county. Appellants answered by general denial, and specially pleaded the coverture of appellant, Mrs. George, and alleged that the note sued on was not binding on her because it was neither given for, nor grew out of, any mercantile or trading pursuit; and pleaded failure of consideration, alleging that the note was given for the purchase of a cow, which was represented to be a fine blooded milk cow and a good breeder, when as a matter of fact said statements were false, and were made by appellee for the purpose of defrauding appellants. The cause was tried to the court, and resulted in a judgment being rendered for appellee against each of the appellants. Hence this appeal.
Appellants have filed a motion to strike out the statement of facts filed in this cause. The statement of facts filed herein shows that the parties failed to agree on a statement of facts, and the trial court, as provided by article 2069, Revised Statutes, prepared and filed a statement of facts, and same was filed in the trial court and in the appellate court within the time allowed by law. Article
" * * * And thereafter the said married woman may, in her own name, contract and be contracted with, sue and be sued, and all of her separate property not exempt from execution under the exemption laws of Texas, shall thereafter be subject to her debts and liable under execution therefor, and her contracts and obligations shall be as binding on her as if she were a feme sole."
The petition of appellee in this cause alleges, and the evidence shows that Mrs. George did, in January, 1912, have her disabilities of coverture removed for mercantile and trading purposes, as provided by the above-named articles of the statute. The note sued on was executed in 1923. So far as we have been able to find, the liability of a married woman on her notes and contracts, after she has had her disabilities of coverture removed, has not been directly determined by our courts. It is unquestionably the law of this state that the appellant Mrs. George would not be responsible under the facts in this case for the payment of the note sued on, unless she has made herself responsible by having had her disabilities of coverture removed.
In Red River National Bank v. Ferguson,
"The caption of the act * * * announces broadly * * * that one of its purposes is to confer upon the wife `the power to make contracts,' apparently without limitation. If such a law had been actually enacted, there could be no question of the power of the wife to make a contract of the kind here presented, or of any other kind. * * * The Legislature had full authority to change the law. It was within its province to overturn this established policy and through the wife's simple contracts charge her estate with the husband's debts."
In Dickinson v. Griffith Lumber Co. (Tex.Civ.App.)
"Article 4629a has some pertinency to this case, because the Legislature deemed it necessary to pass the law in order to give the married woman the right to enter into mercantile and trading enterprises. If she had that right, it would not have been necessary to remove her disabilities of coverture and declare her a feme sole for mercantile and trading purposes. It is clear, then, that she had no such right, independent of the provisions of articles 4629a to 4629d."
In Gooding v. Dove (Tex.Civ.App.)
In Taylor v. Hustead Tucker (Tex.Com.App.)
The general rule at common law is that contracts of a married woman are not enforceable. 30 C.J. 583; 13 R.C.L. 1253; Speer's Law of Marital Rights, par. 145. The Legislature, not being restrained by the Constitution, has the inherent power to change the rule of the common law, and enlarge the privileges and responsibilities of a married woman. Red River Nat. Bank v. Ferguson, supra; 13 R.C.L. 1267; Vairin v. Hobson,
By virtue of article 4629d, above quoted, if a married woman, joined by her husband, as provided in said act, does have her disabilities of coverture removed, she has the right to make any kind of a contract, and she will be bound on any contract that she may thereafter make, the same as though she were a feme sole. In this case, it being an established fact that at the time Mrs. George executed the note her disabilities of coverture had been removed under said statute, her coverture was not a defense.
By their third proposition, appellants contend that the cause should be reversed, because the trial judge failed to file his findings of fact and conclusions of law after he had been requested to do so by appellants. There is with the record a statement of facts, showing all of the testimony that was introduced, and appellants do not in any way challenge the accuracy of same. It appears from the record that appellants did not offer any testimony on the trial of the case. The only testimony that was offered was the note sued on, the petition filed by appellants in the district court asking for the removal of the disabilities of coverture of appellant Mrs. George, and the judgment of the court removing said disabilities. It appears that no possible harm or injury has been suffered by appellants by reason of the trial court's failure to file its findings of fact and conclusions of law. In addition to the statement of facts, the judgment entered by the trial court finds, as a fact, that all the material allegations of appellee's petition were established by the testimony. Under the record in this case, we do not think the failure of the trial court to file his findings of fact and conclusions of law necessitates a reversal. G. H. S. A. Ry. Co. v. Stewart et al. (Tex.Com.App.)
Appellants, by their fifth proposition, complain of the action of the trial court in refusing to give them a hearing on their amended answer filed on January 5, 1924. The judgment of the court recites that all parties appeared on the 18th day of December, 1923, and announced ready for trial, and that all matters in controversy were, by agreement of all parties, submitted to the court, and that on the evidence offered, the court found appellee was entitled to judgment against appellants, and, at the request of appellants, agreed not to enter the final order until the last day of the term of court, which was January 5th, and that on said date the court entered judgment for appellee. The record further shows that on January 5th the appellants, having employed new counsel, by leave of the court, filed an amended answer, alleging, in substance, the same defenses that were alleged in their original answer, except that for the first time they alleged the *937 coverture of Mrs. George. The record shows that, after the amended answer was filed, appellants verbally requested the judge to give them a hearing on the amended answer, which he refused, giving as his reason that he heard the testimony on December 18th and announced his judgment, and had, by request of appellants, left the final entry thereof until January 5th, which was the last day of the term. Appellants did not file any motion for a continuance, nor any written motion for a hearing on the amended answer, and did not assign any reason why the cause should be postponed and further testimony heard.
After the court entered its judgment, appellants filed their motion for a rehearing. Said motion is not sworn to and does not suggest any testimony that could have been offered or that appellants had any testimony to offer, or that appellants have been in any way deprived of any right by reason of the court not having retried the case. There is nothing in appellants' motion for a rehearing that can in any way be construed to suggest or intimate that appellants were not given a fair and impartial hearing in the trial court, or that the trial court in any way abused its discretion in overruling appellants' motion for a rehearing.
Appellants have filed in this court some affidavits, which they ask the court to consider, which tend to show they were denied an impartial hearing in the trial court. This court is without authority to pass on any question that could have been presented in the trial court, and which was not there presented. City of Austin v. Nalle,
We have examined all of appellants' assignments of error, and same are overruled. The judgment of the trial court is affirmed.