M. Piowaty Sons v. Wyche

193 S.W. 1146, 1917 Tex. App. LEXIS 336

• Court: Court of Appeals of Texas
• Decided: April 4, 1917
• Docket: No. 5833.
• Status: Published

Opinion

FLY, C. J.

Appellees sued T. W. Courtney on a promissory note in the sum of $500, being the rental price for 100 acres of land planted by said Courtney in onions. It was alleged that the onions were raised and duly harvested. It was further alleged that appellants were given due notice of a landlord’s lien on the onions, and they agreed in writing to protect the claim of appellees and give it priority over all others. Appellants admitted that they had agreed to protect the interest of appellees, but sought to have the sureties on a certain bond given to them by Courtney, in which he agreed to indemnify them against any loss on account of the payment of any debt against said Courtney, by said appellants, made parties to the suit. An exception was sustained to the answer,, and judgment by default was rendered against Courtney and on the pleadings and evidence against appellants in the sum of $556.

This suit was filed on June 17, 1916. On July 4, 1916, appellants filed their answer, and on July 18, 1916, an application for a continuance in order that the sureties on the bond might be made parties was filed. The bill of exceptions to the action of the court, in overruling the motion for a continuance was filed on October 13, 1916. The cause was tried on July 18, 1916, and the term ended on July 22, 1916. No order was entered extending the time in which to file bills of exception. Rule 55 for the government of district and county courts (142 S. W. xxi) provides that the rulings of the trial court on applications for continuance can only be reviewed through bills of exception. The rule is supported by" a long list of authorities. Entering an exception in the judgment is not sufficient. Darby v. White, 165 S. W. 481. The assignment of error cannot be sustained.

The judgment is affirmed.