Opinion
No. 9225.
January 10, 1934.
Appeal from Willacy County Court; W. E. McCharen, Judge.
Action by Eugenio Garza against Ed G. Vela. From an adverse judgment, defendant appeals.
Affirmed.
S. L. Gill and John W. Hill, both of Raymondville, for appellant.
Jesse G. Foster, of Raymondville, for appellee.
This appeal is predicated upon three assignments of error, which will be noticed in the order presented.
It is first contended that the court erred in striking out a supplemental answer filed by appellant on the day the case was called for trial, but the record does not afford the premise for such complaint. The record shows a motion to strike the pleading, but it does not appear that the court acted upon the motion. Moreover, assuming that the pleading was stricken, as appellant contends, it does not appear that the court abused its discretion in the matter. The record is not sufficient to present the question sought to be raised in appellant's first assignment of error, which is overruled.
It is contended in appellant's second assignment of error that appellee's trial petition was subject to the general demurrer because it was not therein alleged that the note sued on was presented to the principal obligor for payment, or that notice of dishonor was given appellant as a surety on the note. The note set out in the petition, as well as the allegations in the petition, showed that the three signers of the note were principal obligors, and that each of them waived presentment, notice of nonpayment, protest and notice thereof, and diligence in bringing suit. The general demurrer was properly overruled, and appellant's second assignment will therefore be overruled, as will also the third assignment, for the same reasons.
The judgment is affirmed.