"The judgment of the court in taking the property of plaintiff in error and giving it to the defendant in error was an act of charity to say the least of it, on the part of the court, which was unauthorized by any evidence in the case and by any principle of law or of equity known to our jurisprudence. If the court had wanted to have done an act of kindness for the "We cannot permit the records of this court plaintiff, he would have denied to the plaintiff to be made a channel through which attorneys

or parties may cast abuse and vilification upon | The judgment was on December 9, 1914, and each other, and our files cannot be used to pre- the transcript shows that the term of court serve documents containing violent and abusive language of the kind contained in this motion. expired on the 12th day of December, 1914. It evidences a lack of proper respect for this The court filed findings of fact on January 5, court for counsel to present to it a motion of 1915, or more than 10 days after the adjournthis character, and such action might properly ment of said term. Article 2075, Vernon's be treated and punished as contempt." of fact and conclusions of law shall be filed Sayles' Statutes, provides that such findings within 10 days after the adjournment of court. A bill of exceptions was duly reserved to the failure of the court so to file such findings of fact and conclusions of law as prescribed by statute, and there is no statement of facts in the record. This assignment must be sustained, because it has often been held in this state that such findings of fact and conclusions of law, filed more than 10 days after the expiration of the term of court, are a nullity and cannot be considered by the Court of Appeals. Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Emery v. Barfield, 156 S. W. 313; Bradford v. Knowles, 11 Tex. Civ. App. 572, 33 S. W. 149; State ex rel. Sutherland v. Pease, 147 S. W. 649; Guadalupe County v. Poth, 153 S. W. 919; M., K. & T. Ry. v. Cameron & Co., 136 S. W. 74; Bliss v. San Antonio School Board, 173 S. W. 1176.

The motion filed by appellee in its abusive and vituperative language in reference to opposing counsel is on a par with the foregoing excerpts from appellant's brief, and we will permit neither of them to remain on file in this court. Attorneys who practice in this court must understand that we will never permit an argument to be made or filed in this court which, by its abuse of the trial court or of opposing counsel, shows a want of proper respect for the dignity of our courts, the agency created and commissioned by the people of the state to interpret and enforce their sovereign will as expressed in their laws, and all the power of this court will be exercised to secure a proper recognition and observance by attorneys of the rules of decorum necessary to an orderly and dignified administration of law by the courts. The brief of appellant and the motion of appellee will both be stricken from the files of this court and returned to their respective authors, on the court's own motion. Appellant will be allowed 20 days in which to file a brief from which the objectionable language before quoted has been expunged.

INTERNATIONAL & G. N. RY. CO. v.
MUDD. (No. 5517.)

(Court of Civil Appeals of Texas. San Anto-
nio. Oct. 27, 1915.)

TRIAL 403-DELAY IN FILING FINDINGS-
EFFECT.

Where the trial court, upon timely request, failed to file findings of fact within the 10 days after expiration of the term allowed by Vernon's Sayles' Ann. Civ. St. 1914, art. 2075, his subsequently filed findings of fact and conclusions of law were a nullity, and could not be considered by the Court of Civil Appeals.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 913, 954-956; Dec. Dig. 403.] Appeal from Frio County Court; S. T. Dowe, Judge.

Action by G. H. Mudd against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for trial. Cobbs, Eskridge & Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellant. Magus Smith, of Pearsall, for appellee.

CARL, J. Appellee recovered the judgment against appellant for damages to a shipment of stock from Dilley to Ft. Worth. The first assignment of error complains that the court erred in failing to file findings of fact and conclusions of law, after timely request, within the time prescribed by law.

2. PAYMENT 7-TIME-EXTENSION-PASTDUE INDEBTEDNESS.

A creditor, extending a past-due indebtedness, by accepting the 60 and 90 day notes of a debtor conclusively bound himself not to collect the debt until the maturity of the notes.

[Ed. Note.-For other cases, see Payment, Cent. Dig. § 11; Dec. Dig. 7.]

On Motion for Rehearing.

3. APPEAL AND ERROR 493
SHOWING JURISDICTION.

RECORD

A default judgment against a defendant will be reversed where the record fails to show service of citation, other than by the recital thereof in the judgment.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2282-2284; Dec. Dig. 493.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

4. APPEAL AND ERROR 880-PARTIES ENTITLED TO ALLEGE ERROR.

In an action against a corporation on its notes and against its president as surety thereon, where the surety's pleading did not seek any relief against the corporation by reason of his suretyship, and where the corporation did not appeal from a default judgment against it reversible on the ground that the record failed to show service against it, the surety could not raise the question of the want of a valid judgment against the corporation.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3590; Dec. Dig. 880.]

time for the payment of the debt due by the canal company, and that therefore there was a valid consideration. To this the defendant Gaines replied that there was no specific agreement for the extension of time for the payment of the debt due by the canal company at the time he signed the notes, and that the plaintiff never requested him to sign the notes, and that the same were signed by him without request and without consideration. He also pleaded that the purpose of executing the notes was, to settle all controversy as to the amount and validity of the debt due plaintiff by the canal company, and not for the purpose of securing an extension of time, or to limit the time within which plaintiff could sue on the debt. The case was tried before the court without a jury and resulted in a judgment by default against the defendant Lake Austin Canal Company for $990.40, together with $49.38 interest and $100.93 attorneys' fees, aggregating $1,143.67, and in favor of defendant John W. Gaines. From the judgment in favor of defendant Gaines, the plaintiff has prosecuted a writ of error to this court.

Appellant by several assignments of error complains, in different ways, of the action of the court in rendering judgment in favor of defendant Gaines; the gravamen of the complaint being that the undisputed evidence shows that the act of said Gaines in signing the notes sued upon was based on a sufficient

Error from District Court, Harris County; consideration to render his promise to pay Wm. Masterson, Judge.

them a binding obligation upon his part.

Its

Action by the Bonner Oil Company against The following is a statement of the mathe Lake Austin Canal Company and John terial undisputed facts as shown by the recW. Gaines. Judgment for plaintiff against ord: The Lake Austin Canal Company was the Canal Company and in favor of defend- a corporation duly chartered under the laws ant Gaines, and plaintiff brings error. Re- of Texas, and at the time at which plaintiff's versed, and judgment rendered for plaintiff. cause of action arose was, and so far as the Hunt, Myer & Teagle and Rodman S. Cos- record shows is now, a going concern. by, all of Houston, for plaintiff in error. capital stock was $18,000, and was owned Gaines & Corbett, of Bay City, and Cole & in equal amounts by defendant John W. Cole, of Houston, for defendant in error. Gaines, his son, C. M. Gaines, and Ed Savage. John W. Gaines was its president, and Ed McMEANS, J. The Bonner Oil Company Savage its secretary and general manager. brought this suit against the Lake Austin The Bonner Oil Company, plaintiff, was Canal Company, a corporation, and John W. engaged in selling lubricating oils; and in Gaines, on two promissory notes alleged to endeavoring to make sales to the Lake Aushave been executed to it by the defend- tin Canal Company, its agent, Mr. J. H. ants, each for the sum of $445.20, dated Bland, called upon Mr. Savage and solicited February 3, 1914, bearing 8 per cent. per him to buy, and was referred by Savage to annum interest and maturing 60 and 90 days Mr. Gaines, and after talking the matter after date, respectively. The defendant Lake over with Mr. Gaines the latter told the Austin Canal Company failed to appear and agent to go back to Mr. Savage and tell him answer. The defendant Gaines answered, to order what he wanted. Savage thereafter pleading want of consideration on his part ordered from time to time oil in such quantifor the execution of the notes which he al- ties as he desired, the value of which leged were given for a debt due by the canal amounted to $890.40, no part of which was company to plaintiff, and that he was not ever paid. Afterwards the Bonner Oil Cominterested in such debt except as a stock-pany began trying to collect this sum, and to holder in the defendant canal company. this end its said agent, Bland, went to Bay Plaintiff, in reply, pleaded that the execution of the notes by defendant Gaines was done for the purpose of securing an extension of

City, where the principal office of the corporation was located, and where the defendant Gaines lived, to see Mr. Gaines with ref

1

"In this connection I wish to say that if you will do so (extend time of payment until fall) the Lake Austin Canal Company will very until fall, as it is practically impossible for them much appreciate you carrying this account over to pay it at this time, and get through this season's work. I will re-indorse this paper, paysuggested, it will be a great accommodation to able in the fall, and if you will do as above me and to the canal company."

erence to payment; but Mr. Gaines was wrote to the plaintiff asking for a further away, and Bland did not then see him. Lat- extension of time in which to pay the same. er he again went to Bay City for the pur- In this letter, which is dated April 27, 1914, pose of making a collection, his purpose be- he says: ing to either collect the amount due, or a part of it, or to close the account with notes, and carried with him blank notes to be filled out and executed, in the event the amount was not paid. He called upon Mr. Gaines at his office, and the latter, after Mr. Bland had stated that his purpose in calling was to get some money on the debt, stated to Bland that the corporation had not sold its rice at that time, and that they had had bad luck, whereupon Bland presented the blank notes which were filled out for equal

amounts, aggregating the amount of the debt, and were signed by the corporation by Mr. Gaines as its president and also signed by him in his individual capacity, and as thus signed were handed to Mr. Bland. Bland testified that when he handed the notes to Gaines for execution he said to him, in substance:

"Mr. Gaines, we would be glad to have the notes, because they will help us out with the bank; we might be able to handle the notes at the bank, and get the money, and if we can accommodate you, we will do it in that way." He further testified that, when Gaines returned the notes to him after signing them, he stated:

"Mr. Bland, I am doing this for you, I don't for the company; I don't often do this, or this is something I haven't often done, or something to that effect, and I thanked him for it, and said I appreciated it very much that he did

It is undisputed that the debt was due at the time the notes were executed, and that days by the giving of the notes.

the time of payment was extended 60 and 90

Under the facts as above stated, the court

W.

held that the signing of the notes by John w. Gaines was without consideration, and upon this view rendered judgment in his faVor; and in so doing, we think, committed

error.

[1] When Mr. Bland accepted the notes by which the time of payment of the debt was extended 60 and 90 days, Mr. Gaines had signed his name thereto as surety. Mr. Bland did not request him to become surety upon the notes in so many words, but that he expected Mr. Gaines to sign them is shown by his uncontradicted testimony that he would not have accepted them had not Mr. Gaines so signed them. The corporation desired further time for payment, and hence was willing to execute the notes which bore 8 per cent. interest in lieu of the debt which drew less interest, if any at all. Mr. Gaines, for his corporation, desired that the exten"If Mr. Gaines had simply given me two notes of the corporation, and had not executed the sion be granted, and was willing to and did rotes himself, I would not have accepted them." sign his name to the notes which effectuated He did not request Mr. Gaines to sign the extension. That he considered himself the notes individually, nor did he tell him bound as a surety is conclusively shown, we that he would not accept the notes of the think, by his letter written after the note corporation without his individual signature. first maturing fell due, in which he reMr. Gaines, testifying as to the circum-quested a further extension of time of paystances under which he signed the notes, ment until fall and agreeing to re-indorse stated: the note if the corporation would grant such extension.

do it."

He further testified:

"Mr. Bland came into the office and told me, as he stated, that the company needed the notes, or could use the notes, or something to that effect, and they asked to close the account with a note, or two notes, divided into two equal amounts, and make them payable 60 and 90 days after date, and after discussing it a little while we agreed to that. The purpose, as stated by Mr. Bland, was just to enable them to use the paper as collateral at the bank, that they might do it; he didn't say they would do it; he said they might need them, and that if they did they could use them to hypothecate them

with the bank to obtain advances. That was the sole reason assigned for wanting the account settled by notes."

He further testified:

"I have been puzzled several times myself just why I did sign the paper at the time, to tell you the honest truth, and I couldn't tell you to this day why I did it. I don't know why I indorsed that paper. * *It is a mystery to me."

After the note, which matured 60 days after its date, fell due, defendant Gaines

[2] It seems to be well settled that the extension of time of past-due indebtedness will support a contract of suretyship. The plaintiff made no express promise to Gaines to forbear to sue, or to extend the time of payment. The negotiations were brief, consisting of a demand upon Gaines, as president of the debtor corporation, for payment of a past-due debt, a statement by him of the inability of the corporation to pay it and the reason why, the production of the notes and their execution by Gaines for his principal and himself, and the return to and acceptance thereof by Bland. The execution of the notes amounted to an extension of time by the plaintiff, but the notes would not have been accepted and the time extended if Mr. Gaines had not signed them individually. By accepting the notes the plaintiff conclusively bound itself not to collect