Chambers v. First Nat. Bank in Hemphill

On Rehearing. Appellee has made no point that, in ruling on appellant's appeal from the judgment overruling his plea of privilege we could consider the statement of facts before us in the appeal from the trial on the merits, cause No. 3106 on our docket. Appellee's brief in cause No. 3106 consists of less than one page, and contains this statement: "Since the disposition of this cause depends almost wholly upon the disposition of Cause No. 3036, appellee, in so far as same may be applicable to this case, adopts the statement of the nature and result of this suit, the statement detailed in its brief in Cause No. 3036."

Thus, appellee concedes, and its concession is the law, that in reviewing the judgment of the lower court on the plea of privilege, we cannot consider the statement of facts before us on the trial on the merits.

On rehearing, appellee strenuously insists that a plea of privilege invoking subdivision 5 of article 1995 (as amended, Vernon's Ann.Civ.St. art. 1995, subd. 5) should not be construed as a plea of non est factum; that point is foreclosed against appellee, definitely, finally, and conclusively by the authorities cited and reviewed in the original opinion.

Appellee also contends that subdivision 29a sustains the judgment of the lower court. Key v. Mineral Wells Investment Co., cited and reviewed in the original opinion, is directly against appellee's contention, and affirmatively supports our conclusion. The fact that appellant in this case did not object to the admission of the mortgage and note when offered as evidence on the trial of the plea of privilege does not distinguish this case from the Key Case; appellee, under the authorities cited in the original opinion, was under "the burden of proving, by extrinsic evidence, the execution of the alleged instrument." There was no extrinsic evidence on the execution of the mortgage and note.

The point is also made that, in reversing the judgment of the lower court, we are in conflict with Stockyards National Bank v. Maples,95 S.W.2d 1300, opinion for the Supreme Court written by Judge Smedley. That case is not in point on the issue before us; in the Maples Case Judge Smedley was construing subdivision 4 of article 1995, while in the case before us subdivision 5 was in issue. The authorities clearly draw a distinction between subdivision 4 and subdivision 5.

Appellee requests that we certify this case to the Supreme Court; this request is denied, because, as we understand the authorities, every proposition announced in the original opinion is supported by well adjudicated cases.

For the reasons stated, the motion for rehearing is in all things overruled.