Ramsey v. Thomas , 14 Tex. Civ. App. 431 ( 1896 )

To the petition of the plaintiff, appellee, which declared upon a promissory note, H.D. Ramsey, the appellant and defendant, a maker of the note, interposed a defense admittedly valid, if true.

After the issues of fact were settled, and before the trial commenced, the defendant requested the court to permit him to admit in open court that the plaintiff had a good cause of action as set forth in the petition, except so far as the same might be defeated in whole or in part by the facts of his special answers; and he requested that the admission be entered of record, and that he be granted leave to open and conclude in the introduction of the evidence and in the argument; bringing himself strictly within the provisions of rule No. 31 for the District and County Courts.

We hold that the court erred in refusing his request. The right to open and conclude, under the conditions named in the rule referred to, is a substantial and a valuable right (Smith v. Bank, 74 Tex. 541), and unless the record disclose that the refusal of the request provided in that rule was without detriment to the party making the request, such refusal will call for a reversal. Belt v. Raguet, 27 Tex. 471; Ney v. Rothe,61 Tex. 374.

Upon the litigated question presented in the defendant's answer the testimony was sharply conflicting, and we cannot affirm that the action of the court was not prejudicial to the cause of the appellant.

An additional plea urged by the defendant was that of usury with reference to the interest which entered into the note apparently as principal. This plea was sustained by the undisputed evidence. Hence, under article 2979, Sayles' Supplement, Civil Statutes, the entire amount of the interest was forfeited and uncollectible. The judgment, however, should one be rendered, would bear legal interest from its date. The defense of usury would not impair the plaintiff's right to recover the ten per cent attorney's fees stipulated in the note, and upon the principal of the obligation.

Reversed and remanded.

Reversed and remanded.