Peters v. Hubb Diggs Co.

ALEXANDER, J. This was a suit brought in the county court at law of Tarrant county by Hubb Diggs Company against C. C. Peters on a promissory note for $756.23 and to foreclose a chattel mortgage lien on certain personal property i The defendant filed a general demurrer and a general denial. On February 4, 1930, the date for which the case was set for trial, the defendant and his attorney failed to appear and defend the suit, and judgment was entered for the plaintiff as prayed. The defendant appeals. The appellant in his propositions 1 to 4 asserts that the plaintiff’s petition was subject to a general demurrer for its failure to allege the value of the personal property covered by the chattel mortgage. It is true that, where a suit is brought in a court of limited jurisdiction, as is the county court, for a debt and to foreclose a mortgage lien, the plaintiff, in order to confer jurisdiction on the court, must allege the value of the mortgaged property at the time of the filing of the suit. Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742; Butts v. Hudgins (Tex. Civ. App.) 255 S. W. 762. It is the larger of the two, that is, the amount of the debt or the value of the mortgaged property, that determines the jurisdiction of the court, Williams v. Givins (Tex. Civ. App.) 11 S.W.(2d) 224, 225, and if the value of the mortgaged property is not alleged, the jurisdictional amount is not shown. However, we think this requirement was met by the allegations in the petition. The second paragraph of plaintiff’s petition described the note sued on, and in the third paragraph thereof the plaintiff alleged as follows: “In order to secure the payment of the above note and as a part of the same transaction the defendant made, executed and delivered to the plaintiff his certain chattel mortgage on the following described personal *450 property, to-wit: One Massie-Harris binder of tbe value of 1100.00 and two Fordson tractors, motor No. 342338 and-respectively, of tbe value of $150.00 and $150.00, respectively.” Appellant contends that, by tbe above paragraph of plaintiff’s petition, tbe plaintiff did not intend to allege tbe value of tbe mortgaged property at tbe very time of tbe filing of tbe suit, but intended to allege tbe value of tbe property at tbe time of tbe execution of tbe mortgage. We do not tbink tbe petition subject to tbis construction. Every reasonable intendment will be indulged in favor of tbe petition as against a general demurrer. Knoohuizen v. Nicholl (Tex. Civ. App.) 257 S. W. 972. There was no occasion for tbe plaintiff to allege the value of tbe property at tbe time of the- execution of the mortgage. Tbe only purpose for which tbe allegation as to value could bave been made was in order to show tbe jurisdictional amount. We overrule tbis contention. By bis fifth proposition, appellant contends that tbe petition was defective for failure to allege that tbe plaintiff was tbe owner and bolder of the note sued on. Tbe petition alleges that tbe defendant made, executed, and delivered to tbe plaintiff the promissory note in question, and that the note was payable to tbe order of plaintiff. He further alleges that tbe defendant thereby became bound and liable, and promised to pay tbe plaintiff tbe amount of money specified in tbe note, that tbe note was past due and unpaid, and that demand for payment bad been made. There was nothing to indicate that tbe note bad passed out of plaintiff’s bands. Where a payee in a note brings suit thereon, and there is nothing to indicate that be has parted with title thereto, it is not necessary for him to allege that be is still tbe owner and bolder of the note. Bryan v. Wharton Bank & Trust Co. (Tex. Civ. App.) 174 S. W. 827; Barton v. Pochyla (Tex. Civ. App.) 243 S. W. 785 (writ refused). Tbe appellant insists that tbe trial court erred in overruling tbe motion for new trial. Tbe judgment was rendered on February 4, 1930, on tbe date for which tbe case was regularly set for trial. On tbe following day, M. Kleberg, as amicus curte, filed a motion for new trial, in which be alleged that W. W. Alcorn, the attorney for tbe defendant,' bad gone to Montague county for the purpose of trying- a murder case, and that be was actually in attendance on tbe district court in that county on tbe date on which tbis case was tried, and that it was impossible for him to be present at tbe trial of tbe case. Tbe only answer that bad been .filed by tbe defendant was a general demurrer and a general denial. Tbe motion for new trial did not allege any defense to tbe cause of action sued on. It was not sworn to nor supported by affidavits. Tbis motion remained on tbe docket until February 27th, when it was by tbe court overruled. Tbe order overruling tbe motion states that tbe defendant failed to appear and prosecute tbe same. There was no evidence introduced to show that tbe facts stated in tbe motion were true. Where a defendant seeks to set aside a default judgment, two things must appear: First, that he has a meritorious defense to tbe cause of action sued on; and, second, a clear case of diligence, that is, that be was prevented from presenting bis defense by fraud, accident, or acts of tbe opposite party wholly unmixed with any fault or negligence on his part. Lawther Grain Co. v. Winniford (Tex. Com. App.) 249 S. W. 195; Thomas v. Goldberg (Tex. Civ. App.) 283 S. W. 230. In tbe case at bar, tbe defendant not only failed to allege or prove any defense to the cause of action sued on, but wholly failed to account for bis failure to appear and present bis defense at tbe proper time. Tbis assignment is overruled. We bave considered all other assignments presented, and same are overruled. Tbe judgment of tbe trial court is therefore affirmed.