First Nat. Bank v. Rush

Texas Commission of Appeals

First Nat. Bank v. Rush

213 S.W. 931, 1919 Tex. App. LEXIS 867

CourtTexas Commission of Appeals

DecidedJune 11, 1919

DocketNo. 55-2733

StatusPublished

This text of 213 S.W. 931 (First Nat. Bank v. Rush) is published on Counsel Stack Legal Research, covering Texas Commission of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First Nat. Bank v. Rush, 213 S.W. 931, 1919 Tex. App. LEXIS 867 (Tex. Super. Ct. 1919).

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Opinion

MONTGOMERY, J.

The attorneys for plaintiffs in error in an extended motion for rehearing, supported by much argument, strenuously insist that our opinion in this case is wrong in every particular, and that the effect of our disposition of the case is to work a gross injustice. They have also tiled a motion asking to be heard further by oral argument.

Each member of this section of the Commission has carefully considered the motion, and we all think that it should be overruled. We deny the motion for oral argument, because everything in the motion has been thoroughly considered by us, and we feel that, so far as our opinion is concerned, it would be useless. We act only in an advisory capacity, as the motion for rehearing must also be considered by the Supreme Court, and we feel that oral arguments on rehearing should not be heard by us, except in exceptional cases, where the motion raises a doubt in our minds as to the correctness of our decision.

■ With reference to the only question raised which is not passed on in our opinion — that is, the contention that Rush did not on oath deny the partnership as alleged by Fuqua— we think it sufficient to say that, in the tenth paragraph of the answer of Rush to Fuqua’s plea of reconvention, it is alleged by Rush that, after the execution of the written agreement with reference to the land transaction that Fuqua failed and refused to carry out the provisions of the contract, and that the contract was wholly ignored and disregarded by both the intervener and the defendant Rush, and was never at any time carried out and' never took effect, and that the parties never in fact became partners. This, and other paragraphs of the answer, were sworn to by Rush.

• We do not pass upon the question as to whether or not, in this case, it was necessary that the existence of the partnership should be denied under oath.

The motion to argue orally is overruled by us, and we recommend that the motion for rehearing be overruled.

PHILLIPS, O. J. Overruled, as recommended by the Commission of Appeals.

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MONTGOMERY, J.

The attorneys for plaintiffs in error in an extended motion for rehearing, supported by much argument, strenuously insist that our opinion in this case is wrong in every particular, and that the effect of our disposition of the case is to work a gross injustice. They have also tiled a motion asking to be heard further by oral argument.

Each member of this section of the Commission has carefully considered the motion, and we all think that it should be overruled. We deny the motion for oral argument, because everything in the motion has been thoroughly considered by us, and we feel that, so far as our opinion is concerned, it would be useless. We act only in an advisory capacity, as the motion for rehearing must also be considered by the Supreme Court, and we feel that oral arguments on rehearing should not be heard by us, except in exceptional cases, where the motion raises a doubt in our minds as to the correctness of our decision.

■ With reference to the only question raised which is not passed on in our opinion — that is, the contention that Rush did not on oath deny the partnership as alleged by Fuqua— we think it sufficient to say that, in the tenth paragraph of the answer of Rush to Fuqua’s plea of reconvention, it is alleged by Rush that, after the execution of the written agreement with reference to the land transaction that Fuqua failed and refused to carry out the provisions of the contract, and that the contract was wholly ignored and disregarded by both the intervener and the defendant Rush, and was never at any time carried out and' never took effect, and that the parties never in fact became partners. This, and other paragraphs of the answer, were sworn to by Rush.

• We do not pass upon the question as to whether or not, in this case, it was necessary that the existence of the partnership should be denied under oath.

The motion to argue orally is overruled by us, and we recommend that the motion for rehearing be overruled.

PHILLIPS, O. J. Overruled, as recommended by the Commission of Appeals.

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Bluebook (online)

213 S.W. 931, 1919 Tex. App. LEXIS 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-nat-bank-v-rush-texcommnapp-1919.