March 20, 1924. Rehearing Denied April 17, 1924.
Appeal from Galveston County Court; E. B. Holman, Judge.
Action by the Automobile Finance Company against Ed. F. Anderson, who brought cross-action against the Carter Automobile Company and another. Judgment for plaintiff and against defendant on his cross-action, and defendant appeals from so much of the judgment as was rendered in favor of plaintiff. Affirmed.
Aubrey Fuller and Leo C. Brady, both of Galveston, for appellant.
C. G. Dibrell and McDonald Wayman, all of Galveston, for appellee R.S. Carter.
Terry, Cavin Mills and 0. B. Wigley, all of Galveston, for appellee Automobile Finance Co.
This suit was instituted by appellee, Automobile Finance Company, against appellant, Ed. F. Anderson, to recover the sum of $283.72 alleged to be the balance due upon a series of notes executed and delivered by appellant to the Carter Automobile Company of Galveston, Tex., which said notes had been transferred to appellee before maturity. Appellant by answer alleged that at the time he purchased a certain automobile from the Carter Automobile Company, in payment for which the series of notes were executed, the Carter Automobile Company agreed with him that if the manufacturers of the automobile made a reduction in their sales price of such automobiles within 60 days of said purchase, the said Carter Automobile Company would allow him a credit on said notes for the amount of such reduction; that said manufacturers did make a reduction in the sales price of such automobiles within said 60 days of a sum equal to the sum unpaid by him on said notes; and that therefore he did not owe the sum sued for, or any part thereof. He made the Carter Automobile Company and R.S. Carter parties defendant, and prayed that if the plaintiff was awarded a recovery against him that he should have recovery against said Carter Automobile Company and R.S. Carter, jointly and severally. Upon a hearing before the court without a jury, judgment was rendered for the plaintiff Automobile Finance Company against appellant Anderson for the sum sued for, together with interest due thereon, etc., in the sum of $340.88; that appellant take nothing as against the Carter Automobile Company and R.S. Carter, or either of them, upon his cross-action; and that said parties recover of appellant all costs by them incurred in said suit. From so much of the judgment only as was rendered in favor of the Automobile Finance Company appellant has appealed.
The appeal bond given by appellant reads as follows:
"State of Texas, County Galveston.
"Automobile Finance Company v. Ed. F. Anderson and Carter Automobile Company, a Firm, and R.S. Carter, Individually. No. 12727. In the County Court of Galveston County, State of Texas.
"Whereas, in the above entitled and numbered cause, pending in the county court of Galveston county, state of Texas, at a regular term of said court, to wit, on December 1, 1922, the said Automobile Finance Company, plaintiff, recovered judgment against the said Ed. F. Anderson for the sum of three hundred forty dollars and eighty-eight cents ($340.88) with interest thereon from the 1st day of December, 1922, at six per cent. (6%) per annum, and all costs of suit; and,
"Whereas, on the 3d day of January, 1923, a motion theretofore filed by the said Ed. F. Anderson, defendant, praying for a new trial was overruled, to which action of the court the said Ed. F. Anderson, then and there excepted and gave notice of appeal to the Court of Civil Appeals of the First Supreme Judicial District at Galveston, from which judgment the said Ed. F. Anderson has taken an appeal to the Court of Civil Appeals for the First Supreme Judicial District at Galveston, in the county of Galveston, state of Texas:
"Now, therefore, we, Ed. F. Anderson, as principal and the undersigned subscribers hereto as sureties, acknowledge ourselves bound to pay said Automobile Finance Company, the sum of nine hundred dollars ($900.00), conditioned that the said Ed. F. Anderson, plaintiff, shall prosecute his appeal with effect, and in case the judgment of the Supreme Court, or the Court of Civil Appeals, shall be against him, he shall perform its judgment, sentence, or decree and pay all such damages as said court may award against him.
"Witness our hands this the 17th day of January, A.D. 1923. Ed. F. Anderson.
It is apparent from what has been said that neither the Carter Automobile Company nor R.S. Carter are brought before this court by the appeal bond, and therefore we have no jurisdiction to pass upon the complaints sought to be urged against the judgment rendered in their favor. And since there is no assignment presented complaining of the judgment rendered in favor of the Automobile Finance Company, that judgment will be affirmed.