Ballow v. Wichita County , 74 Tex. 339 ( 1889 )

Henry, Associate Justice.

T. C. Wilson, as treasurer of Wichita County, gave two bonds, on one of which the plaintiffs in this suit were his sureties. The county sued upon both bonds. The suit to which plaintiffs were not parties was numbered on the court docket 108. The one to which they were parties defendant was numbered 109.

Plaintiffs Ballow and Barker pleaded that they signed Wilson’s bond as sureties upon condition that before it was .used the signatures of two other parties named, who were then and are now solvent, should be procured to it; that they so signed at the instance of Wilson and one of the county commissioners, who promised them they would procure the additional signatures, but they failed to do so, and without the knowledge of such failure by said sureties the County Commissioners Court accepted said bond.

Default was made on both bonds and the county sued upon both.- Both suits were defended by the same attorneys, who were employed by Wilson, who promised plaintiffs that all defenses should be made.

The defensive pleadings made by the attorneys were the same in both cases. Plaintiff filed exceptions to the legal sufficiency of the defenses, which having been argued in cause 108 were sustained by the court, and the proof sustaining plaintiff’s case, judgment was entered in its favor, from which the defendants prosecuted an appeal.

The special defense of plaintiffs, mentioned above—that is, the failure to comply with the condition that the names of other sureties to the bond should be procured—was not pleaded, and plaintiffs as well as their attorney testified that it was not mentioned to the attorneys until after judgment in the cause was rendered. The attorney for defendant expressed to plaintiffs his perfect confidence of success upon the defenses pleaded, which is stated by one of the plaintiffs to be his reason for not mentioning his peculiar defense.

When judgment was rendered in cause 108, the pleadings and facts being the same, an agreement was made by the attorneys that the same judgment should be entered in cause 109, which was done without introducing any evidence in that case, though the judgment recited the proceedings of a regular trial on the facts. An agreement in writing signed by the attorneys was filed in cause 109 to the effect that execution should be stayed and the judgment should abide the result of the appeal in cause 108. This court afterwards affirmed the judgment in cause 108, after which execution was sued out on the judgment in 109 and levied upon the property of the plaintiffs, who instituted and now prosecute this suit to enjoin said execution.

The grounds relied on by plaintiffs are that they are not bound by their signatures to the bond because of the non-compliance with the conditions on which they were procured, and which they claim would have been a good defense to the suit on the bond. They charge that Wilson promised and they believed all their defenses to that suit would be made, and that they were assured by their attorneys that the defense being made by them would succeed; that the entry of judgment in cause 109 without a trial ivas unwarranted by law, it being in fact but a confession of judgment without authority; that plaintiffs were informed by their attorneys at the time said judgment was rendered that cause 109 had been continued, which they believed, and relying on that statement they had no knowledge that judgment against them had been rendered until after the judgment in cause 108 had been affirmed in this court.

This cause was tried before the judge and judgment rendered for the defendant.

We do not think these objections are well taken. The record fails to disclose that plaintiffs had any right to rely upon their attorneys making such a defense. It is clear that they did not communicate to them that they had such. More than that, this record discloses that they had no valid defense on the grounds urged. Plaintiffs do not establish by evidence that it was ever brought to the knowledge of the County Commissioners Court that they signed the bond on any conditions or with any reservations. They only show that they expressed such condition to the treasurer and to one of the commissioners who was engaged in helping him to make the bond. When plaintiffs signed the bond they delivered it to these parties and allowed them to deliver it to the court and procure its approval without objection. Under this state of facts they are bound unconditionally by the bond, and the defense if it had been made to the suit on the bond would have been utterly unavailing.

It is unnecessary to go into the questions raised as to the authority or regularity of the proceedings resulting in the judgment rendered in cause 109. If it was reopened plaintiffs do not show any defense to it. It is proper to say that we think all allegations imputing want of good faith to defendant’s attorneys in cause 109 are contradicted by the record.

Article 2874 of the Revised Statutes reads: “No injunction shall be granted to stay any judgment or proceedings at law except so much of the recovery or cause of action as the complainant shall in his petition show himself equitably entitled to be relieved against, and so much as will cover the costs.”

The judgment is affirmed.

Affirmed.

Delivered June 14, 1889.