Citations
- 623 S.W.2d 719
Full opinion text
DOYLE, Justice.
This is an appeal from a summary judgment in favor of State National Bank, Odessa, Texas, and against Air Care, Inc., and Joe D. Bennett, Jr. and wife, Vivian C. Bennett, individually.
The facts are not complicated. The bank sued Air Care, Inc., (Air Care) as maker, and Joe D. Bennett, Jr. and wife, on a promissory note and for foreclosure of a lien on land described in the deed of trust which secured the note. Air Care, which was solely owned by the Bennetts, signed the note. The appellants also signed the deed of trust. Both instruments were dated April, 19, 1976. The note was for $65,-000.00 and on the face of the note certain items were listed as collateral. The deed of trust recited that it was given to secure payment of the above note. The court initially granted partial summary judgment as to Air Care only. By an order dated April 23, 1980, the court, upon appellee’s motion for rehearing, granted a partial summary judgment as to all issues except attorney’s fees. The court granted appellee reasonable attorney’s fees in its final judgment. Air Care did not appeal.
Appellants assert three points of error contending that they were not personally liable on the note because of their affirmative defense that the land in the deed of trust was their homestead and thus not subject to foreclosure. They also argue that summary judgment was improper since there was a fact question as to whether the bank must first look to the personal property listed on the note. They also complain that the court erred in awarding attorney’s fees since there was no evidence of a hearing and there was also no evidence on the reasonableness of attorney’s fees.
Although the law is well settled, we shall discuss briefly appellants’ point of error contending that the security mentioned in the note must be first exhausted in satisfaction of the debt before a resort can be made to the land mentioned in the deed of trust. The record shows that the promissory note and deed of trust w