Avery v. Popper

• Decision Date: 07 December 1895
• Citation: 34 S.W. 325
• Parties: AVERY et al. v. POPPER et al.
• Court: Texas Court of Appeals

34 S.W. 325

AVERY et al. v. POPPER et al.

Court of Civil Appeals of Texas.

December 7, 1895.

Appeal from district court, Hunt county; E. W. Terhune, Judge.

Action by I. Popper & Bro. and others against John M. Avery and others. Judgment for plaintiffs, and defendants appeal. Reversed.

On June 29, 1893, I. Popper & Bro. brought a suit in the district court of Hunt county against J. H. Cooke, M. E. Cooke, W. W. Avery, and John M. Avery. They alleged that on May 26, 1891, J. H. and M. E. Cooke executed their promissory note for $1,940, payable November 1st, after date, to T. H. King; and that said note was secured by a chattel mortgage on certain property, a part of which consisted of 50 cows, with their spring (1891) calves, and one bay mare, two years old, one gray horse, two years old, one black mule, two years old, and one bay mule, two years old; and that on April 10, 1892, said King had, by his indorsement, transferred a partial interest in said note to them, to the amount of $775. On the same day, Neyland & Co. brought a separate suit in the same court, and against the same defendants. They made the same allegations as to the execution of said note and mortgage, and alleged that on April 10, 1892, said King had, by his indorsement, transferred to them a partial interest in said note to the amount of $1,165. Both plaintiffs alleged that W. W. Avery was claiming title to said property, and that it was in the possession of his agent and attorney, J. M. Avery. They each asked for judgment against J. H. and M. E. Cooke for their interest in said note, and each asked for a foreclosure of said chattel mortgage on the above property only, but not on the other property in it. They each made oath and bond in each case, and sued out two writs of sequestration for the property, and the same was seized by the sheriff under each writ J. M. Avery gave two bonds, and replevied the property in each case, with Charles C. Cobb and H. I. Phillips as sureties, and the property was turned over to him. Neither J. H. Cooke nor M. E. Cooke nor W. W. Avery filed an answer. J. M. Avery filed an answer and a motion to quash the sequestration proceedings in each case. Plaintiffs in each case filed a motion to consolidate the two cases, which motions were granted, and the cases consolidated. Plaintiffs then filed a repleader or amended petition. In this they alleged the same facts as in their original petitions, and further alleged the issuance and levy of the writs of sequestration, and the replevy of the property by J. M. Avery, and that afterwards said J. M. Avery had moved the property out of Hunt county, and converted it to his use. J. M. Avery then filed a plea in abatement, claiming his privilege of being sued in Dallas county, the place of his residence, so far as the suit was based on the alleged conversion of this property by him, which plea was overruled. Said Avery also filed an amended answer, in which he excepted to the repleader, on the ground, among others, that such partial transfers of a note could not be made and separate suits be brought and maintained thereon. He also alleged that the property was seized under an execution against J. H. Cooke, issued on a judgment against him, rendered June 10, 1889, by the United States court at Dallas, and that plaintiffs could not maintain their suits based on partial transfers of one promissory note. He also alleged that the mortgage sued on was void for want of sufficient description of the property in it, because, at the time it was given, J. H. and M. E. Cooke had a great many more similar stock, which were kept and mingled with the stock mortgaged. He also alleged that said mortgage included a great many more stock besides those seized under said execution, and sequestered herein; and he asked that the mortgage be foreclosed on all the stock, and that such other stock be first sold. He also alleged this mortgage was fraudulent and void, and that J. H. Cooke was insolvent when it was given, and had ever since remained so, and that, with the knowledge and consent of said King and plaintiffs, he had sold some of the mortgaged property, and used the proceeds for his own use. J. M. Avery also filed a motion to quash the sequestration proceedings, on the ground, among others, that two separate sequestration suits could not be brought and maintained on partial interest in one note and mortgage. Plaintiffs then filed a supplemental petition, in which they alleged that the property mortgaged was the separate property of Mrs. M. E. Cooke, who was the wife of J. H. Cooke and they resisted the prayer of J. M. Avery that the mortgage should be foreclosed on all the property in it, and insisted that it should only be foreclosed on this part of the property, which had been levied on under the execution. Trial was had before the court, without a jury, on January 17, 1894. The case was taken under advisement until February 12, 1894, when judgment was rendered against J. H. and M. E. Cooke for $1,129.55, in favor of I. Popper & Bro., and against them for $1,362.95, in favor of R. R. Neyland, and foreclosing the chattel mortgage on the cows, horses, and mules sequestered, but not on the calves, and judgment was rendered against J. M. Avery and his sureties for $860, being the total value of said cows, horses, and mules. The case was dismissed against W. W. Avery, and no judgment rendered against him. J. M. Avery and his sureties prosecute the appeal to this court.

Cobb & Avery, for appellants. B. F. Looney and Mathews & Neyland, for appellees.

FINLEY, J. (after stating the facts).

It is urged under the first assignment of error that the court erred in not sustaining the motion to quash the sequestration proceedings filed in the consolidated cause, based upon the proposition that the partial transfers of the note did not authorize separate and independent suits for the different interests, and no valid writs of sequestration could issue in such suits. In the original suits, the partial transferees of the note proceeded separately and independently, neither making the other a party, to obtain judgment for his debt and a foreclosure of the mortgage; and in each case independent writs of sequestration were issued. At common law, a partial transfer of negotiable paper is void. Under our system of blended law and equity practice, a recovery may be had under such a transfer, when all the parties holding thereunder are parties to the suit. There is nothing in our system of practice which authorizes the prosecution of separate, independent actions for recovery of the interests sought to be conveyed by such partial transfers. Where all the parties holding partial transfers are before the court, and one decree can determine the whole matter, equity will not treat the transfers as void, but will enforce the demand; but it abhors a multiplicity of suits, and would refuse its sanction to the prosecution of several suits for the enforcement of one demand. Lindsay v. Price, 33 Tex. 280; Frank v. Kaigler, 36 Tex. 306; Goldman v. Blum, 58 Tex. 641; Harris Co. v. Campbell, 68 Tex. 25, 3 S. W. 243; 3 Pom. Eq. Jur. § 1280; 1 Daniel, Neg. Inst. § 668. If the plaintiffs could not maintain separate suits, if they had not separate causes of action, then sequestration proceedings could not legally issue in such suits. The proceeding is strictly statutory, and ancillary to a suit...