Dunlap v. Southerlin
| Decision Date | 16 January 1885 |
| Docket Number | Case No. 1909. |
| Parties | S. M. DUNLAP ET AL. v. L. S. SOUTHERLIN ET AL. |
| Court | Texas Supreme Court |
APPEAL from Washington. Tried below before the Hon. I. B. McFarland.
This suit was instituted by appellant, S. M. Dunlap, in the district court of Washington county, on the 24th day of July, 1883, against appellee L. S. Southerlin, and against Wyatt Lipscomb, appellee, as sheriff of Milam county, to enjoin Lipscomb from selling the interest of S. M. Dunlap in the partnership property of Dunlap & Graves, under an execution issued out of the district court of Washington county on the 17th day of April, 1883, in favor of L. S. Southerlin and against S. M. Dunlap, and by Lipscomb levied upon the property on the 16th day of July, 1883, to enjoin and restrain L. S. Southerlin from the collection of the execution, and that the plaintiff in execution and judgment and all other persons be enjoined from further proceeding under that judgment or execution; that the judgment and execution be canceled and set aside, and the injunction be perpetuated. The injunction was granted and writ issued on the 24th of July, A. D. 1883. The answer of L. S. Southerlin consisted of general and special exceptions, and Lipscomb, sheriff, justified under the writ and adopted pleading of defendant Southerlin. L. S. Southerlin set up specially the proceedings in the suit 3669, showing the judgment, and that executions were regularly issued and judgment kept alive up to time of the issuance of writ in 1883, and levy on the stock of goods in Milam county, and claimed that the goods were liable to the execution, and claimed damages for the delay.
On September 8th, James M. Southerlin, James R. Warren, William T. Southerlin and James F. Callaway, comprising the firm of Southerlin, Warren & Co., intervened, claiming that they brought suit 3669, and that Dunlap in that suit appeared, and that such proceedings were had as resulted in the judgment upon which the execution was issued, and that the intervenors consented to the enforcement of the judgment. They afterwards dismissed their plea of intervention. The injunction was dissolved, etc. The judgment in suit 3669 was rendered in favor of L. S. Southerlin and against Dunlap, though the suit was brought by Southerlin, Warren & Co. This statement, with that in the opinion, will suffice to understand the questions discussed by the court.
Henderson & Henderson and Lott & Ralston, for appellants, on dismissing plea of intervention, cited: Bradford v. Hamilton, 7 Tex., 55;Field v. Gantier, 8 Tex., 74;Frank v. Kaigler, 36 Tex., 306;Allen v. Pannell, 51 Tex., 165. On the invalidity of the judgment: R. S., arts. 1354, 1355; Pasch. Dig., art. 4951; Ramsey v. McCauley, 9 Tex., 106;Russell v. Miller, 40 Tex., 499; Witt v. Kaufman, 25 Tex. Sup., 386; Freeman on Judg., sec. 117.
Anthony & Wilcox and Sayles & Bassett, for appellees, cited: Watson v. Hopkins, 27 Tex., 642;Lawler v. White, 27 Tex., 250;Fitch v. Boyer, 51 Tex., 344;Murchison v. White, 54 Tex., 78;Tennell v. Breedlove, 54 Tex., 540;Alston v. Richardson, 51 Tex., 1, and other cases.
This action was instituted by S. M. Dunlap July 24, 1883, against L. S. Southerlin and Wyatt Lipscomb, sheriff of Milam county, to restrain the sale of certain property, levied upon under authority of an execution which issued from the district court for Washington county April 17, 1883.
The execution was issued in favor of L. S. Southerlin and against S. M. Dunlap, and the question which arises is: Was there a valid judgment in favor of L. S. Southerlin against S. M. Dunlap to support the execution.
It appears that on the 5th of April, 1867, John M. Southerlin, William T. Southerlin, James R. Warren and James F. Callaway, who composed the firm of Southerlin, Warren & Co., instituted a suit in the district court for Washington county against S. M. Dunlap on a note executed by Dunlap to themselves, not shown ever to have been legally or equitably transferred. This action was numbered 3669, and therein Dunlap was regularly served with process, and appeared and answered by attorneys by him employed.
The record in that case was offered in evidence, and there is nothing tending to show that any part of the record has been lost or destroyed.
That record shows the petition as before stated, the note sued on, citation and return showing proper service, and answer filed for the defendant, consisting of general demurrer and general denial, and subpœnas for witnesses issued for the defendant.
On the petition, in the handwriting of counsel who represented Southerlin, Warren & Co., who also represents the appellees in this case, the following indorsement is found: “Submitted to court; judgment for plaintiff, note and interest, October 16, 1871.”
Counsel who represented Southerlin, Warren & Co. testified in this case, and stated in substance that he knew of no other pleadings than such as are now found in the record, and that he knew of no agreement that judgment should be taken in favor of L. S. Southerlin, who is not shown to have been a party in any way to the suit. In fact, the existence of such a person, to say the least of it, is rendered exceedingly doubtful by the evidence of the attorney who represented Southerlin, Warren & Co., who seems to have no knowledge of such a person by reputation or otherwise, as well as by other evidence which is found in the record.
October 16, 1871, in cause No. 3669, the following judgment was entered:
+------------------------------------------+
¦“L. S. SOUTHERLIN ¦ ¦ ¦ ¦
+------------------+-+---+-----------------¦
¦3669¦v. ¦)¦ss.¦October 16, 1871.¦
+----+-------------+-+---+-----------------¦
¦ ¦S. M. DUNLAP.¦)¦ ¦ ¦
+------------------------------------------+
This day came the parties by their attorneys, and by consent a jury was waived, and the cause is submitted to the court, and thereupon the argument of counsel being had, and the matters and things being seen and by the court fully understood, and it is considered by the court that the plaintiff do have and recover of the defendant the sum of ($1,391) one thousand three hundred and ninety-one dollars, principal and interest, with interest thereon from this day at the rate of eight per cent. per annum, and all costs of suit, and that they have their execution.”
The appellant pleaded and proved that he settled the claim of Southerlin, Warren & Co. with them about the year 1874, by paying twenty per cent. of the face of the original debt.
Southerlin, Warren & Co. intervened in this cause, but, with leave of the court, afterwards withdrew their intervention, the appellant objecting thereto.
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