Woodard v. Long

61 S.W.2d 139, 1933 Tex. App. LEXIS 824

Opinions

LATTIMOEE, Justice.'

Appellee Long sued appellants Woodard, as principal, and Reece S. Allen and John O’Neil, as sureties, on a note. The petition alleged the rate of interest without in connection therewith -alleging when interest began. The prayer prayed for interest from the date of the note. We believe the special exception thereto directed for failure to directly allege the date interest began was good and should have been sustained, though if that were the only error in the record we would hesitate to declare it reversible.

The petition nowhere alleged any facts showing that the liability of the sureties had been fixed as prescribed by articles 5937 and 5938, Rev. St. 1925. Against this petition a general demurrer by sureties is good, and being urged in this case should have been sustained according to the following authorities: First Nat. Bank v. Lee County Cotton Oil Co. (Tex. Com. App.) 274 S. W. 127; Wardlaw v. Farmers’ & Merchants’ Bank Co. (Tex. Com. App.) 34 S.W.(2d) 419; First State Bank v. Ovalo Warehouse Ass’n (Tex. Civ. App.) 276 S. W. 773; Howth v. J. I. Case Threshing Mach. Co. (Tex. Civ. App.) 280 S. W. 238. We need not discuss the matter further.

The cause is reversed and remanded to the trial court. ,