Graves v. First National Bank of Bonham

14 S.W. 163, 77 Tex. 555, 1890 Tex. LEXIS 1169, 77 Tex. 546

• Court: Texas Supreme Court
• Decided: June 3, 1890
• Docket: No. 6684
• Status: Published

Opinion

ACKER, Presiding Judge.—

The First National Bank of Bonham brought this suit in the Justice Court of Precinct No. 1 of Fannin County against Smith Graves and James W. Graves as makers and R. H. Taylor as endorser, on a promissory note for $150. The defendants Smith and James W. Graves pleaded that they were residents of Precinct No. 3, and claimed their privilege of being sued in that precinct; they also pleaded that the note sued on was the property of R. H. Taylor and not the property of plaintiff, and that the consideration for which the note was given had failed. These pleas were sworn to by both defendants Graves. The trial in the Justice Court resulted in judgment for plaintiff, from which the defendants Graves appealed; and the trial without a jury in the District Court also resulted in judgment for the plaintiff, from which the defendants Graves prosecute this appeal.

The record contains no statement of facts or conclusions of the trial court.

It appears from a bill of exceptions that on the trial plaintiff offered in evidence the note sued on, and rested. Whereupon the defendants demurred to the evidence, and the court overruled the demurrer and rendered judgment for the plaintiff.

The first assignment of error is: “The court erred in not sustaining the plea of defendants to the jurisdiction of the court, for that in the sworn plea of defendants they showed that they are residents of Precinct No. 3, Fannin County, Texas, and this suit was had in Precinct No. 1, Fannin County, Texas; the note sued on being payable to R. H. Taylor or bearer, and was not such an instrument as by a simple endorsement thereon by said R. H. Taylor would give jurisdiction to the Justice Court of Precinct No. 1 of Fannin County, Texas.”

In disposing of this assignment it would probably be sufficient to say that it does not appear that any evidence was offered to sustain the plea of privilege. The mere averment of facts without proof of them is insufficient to found a judgment upon. Upon inspection of the plea, however, we find that it does not negative the fact of defendant Taylor’s residence in the precinct where the suit was brought. In the absence of both a statement of facts and findings by the court, we must presume that the facts were shown which gave the court jurisdiction. Taylor’s ■endorsement on the note constituted a contract between him and the endorsee or any person who might acquire title to the note that he would pay it upon failure to realize the money due on the note from the makers, and this contract was none the less valid and binding upon Taylor because the note was payable to bearer and his endorsement was in blank.

The second assignment of error is: “The court erred in not sustaining the demurrer of defendants to the evidence as shown by bill of exceptions No. 1 filed in this cause. The plaintiff read in evidence the note sued on in said cause and rested the case, offering no other evidence, to which evidence defendants demurred and same was overruled by the court.”

The defendants offered no evidence at all, and the note was sufficient evidence to sustain the judgment in favor of plaintiff.

Our attention has not been called to any matter that would justify reversal, and we are of opinion that the judgment of the court below should be affirmed.

Affirmed.

Adopted June 3, 1890.