Henderson v. Banks

Acker, Judge. Appellees, executors of the estate of J. B. Banks, brought this suit to recover several sums of money alleged to have been loaned to, or deposited with, appellants, J. C. Henderson, C. R. Miller and J. B. Henderson, who were partners doing business during the time the several sums of money were received, under the different firm names of J. C. Henderson, Henderson & Miller, and J. 0, Henderson & Bro. Most of the items sued for, amounting to about four thousand three hundred and fifty dollars, were evidenced by due bills, all of which appeared to be barred by limitation, except a due bill for two thousand two hundred and sixty-eight dollars and eighty-one cents. Appellants plead the statute of limitation to all items sued for, except the due bill for two thousand two hundred and sixty-eight dollars and eighty-one cents, and plead payment in full of all indebtedness. Appellees, by supplemental petitions, alleged that J. G. Henderson, the active managing member of the firm, was son-in-law to executrix, C. C. Banks, and received the money on deposit for the use of his firm, to be returned when demanded, and specially denied payment. Ho jury was demanded, and the trial was by the court, but no conclusions of law or fact were filed. Appellant J. C. Henderson, waived citation and accepted service for himself and other defendants, and pleadings were filed for all of them. Judgment was rendered February 19, 1887, against J. C. Henderson, J. B. Henderson and C. R. Miller for two thousand one hundred and thirty-three dollars and eighty-seven cents. During the term J. B. Henderson and C. R. Miller filed motions to set aside the judgment upon the grounds, that they had not been served with citation and had never authorized any one to waive citation and accept service for them, nor had they ever authorized any one to enter appearance or file answers for them. On hearing these motions, the court reformed the judgments so as to award execution against the firm, and only against J. C. Henderson individually. [400] Opinion adopted March 27, 1888. It is contended that the court erred in admitting in evidence over objections of appellants the due bills and receipts sued on which appeared to be barred by the statute of limitations. There were items of set off pleaded by appellants, which appeared to be barred, to which the statute of limitations was pleaded by appellees, and, in the absence of a showing to the contrary, it must be presumed that the court took all these items into consideration in determining the balance, for the judgment was rendered for a less amount than one item sued for, which clearly was not barred. It is contended that the court erred in reforming the judgment instead of granting a new trial. The acceptance of service by J. C. Henderson authorized judgment against him individually and against the partnership, and we can not see that J. L. Henderson and C. E. Miller have any just cause of complaint because the court on their ex parte showing so reformed the judgment as to relieve them of individual liability. (Sanger v. Overmier, 64 Texas, 57; Alexander v. Stern, 41 Texas, 193; Railroad Company v. McCaughey, 62 Texas, 271.) The court had absolute control of the judgment during the term, and had the right to change or reform it, in any way not inconsistent with the rules of procedure, and as might be demanded by the rules of law. (Wood v. Wheeler, 7 Texas, 13.) Other assignments of error relate to the sufficiency of the evidence, and will not be discussed, as we think the evidence abundantly sustains the judgment. There is no error in the record that we think requires reversal, and we are of opinion that the judgment of the court below should be affirmed. Affirmed.