Baines v. Ullman

Citation9 S.W. 543
CourtSupreme Court of Texas
Decision Date23 October 1888
PartiesBAINES <I>v.</I> ULLMAN <I>et al.</I>

Appeal from district court, Shelby county; JAMES I. PERKINS, Judge.

Action for debt brought by Ullman, Lewis & Co. against James B. Baines. There was a judgment for plaintiffs, and defendant appeals.

E. B. Wheeler and Drury Field, for appellant. Davis & Lucky and Robert G. Street, for appellee.

STAYTON, C. J.

The appellees brought an action for debt against appellant, and sued out a writ of attachment, based on an affidavit that he had disposed of a part of his property with intent to defraud his creditors. The attachment was levied on a stock of goods which were in the custody of the sheriff, when appellant filed a motion to quash the attachment on account of an informality which would have been fatal to the validity of the writ; but, before that motion was acted upon, the appellees filed an affidavit for attachment setting up the same grounds alleged in the first, executed the proper bond, and obtained another writ, which the sheriff levied on the same goods seized under the first writ. The defendant admitted the justice of the debt sued for, but, in reconvention, sought to recover damages on the ground that the writ of attachment was wrongfully sued out. There was a judgment for the plaintiffs for the amount of the debt sued for, and against the defendant on his plea in reconvention.

It is claimed that the levy of the first or second writ of attachment was necessarily wrongful, without reference to whether the ground made the basis for attachment existed, and that the court should have so instructed the jury. If the ground for attachment existed when the first attachment issued, it was one in its nature continuing, and neither writ could be said to have been wrongfully sued out. The first, on account of a clerical inaccuracy, would have been quashed; but this did not make the suing out of the writ wrongful, or destroy the ground made the basis of the second writ. Had there been a judgment in favor of the appellant on his plea in reconvention, in estimating the damages to which he would have been entitled, so far as this would be affected by the date of seizure, the first seizure, it would seem, ought to be looked to. On a question of costs, all costs incurred in reference to the first writ, had it been quashed, would doubtless have been taxed against the parties suing it out; but no question of that kind arises on the record before us.

It appeared that immediately before the action was instituted the appellant, who was a retail merchant, sold to Mary E. Baines goods amounting in value to about $1,000, and it was claimed by appellees that this sale was made with intent to defraud creditors. Appellant, however, testified that Mary E. Baines had formerly been his wife, from whom he had been divorced, and that he had become and was indebted to her on a settlement of their property rights in a sum as large or larger than the value of the goods sold by him to her, and that the goods were in good faith sold to her in settlement of so much of the debt due to her. There was no evidence tending to show that the testimony of the appellant in this respect was not true; but no other witness was called to prove his indebtedness to his former wife at the time of the sale of the goods, though there was another witness who testified to an indebtedness from him to his former wife amounting to more than the value of the goods sold, and existing about three years before the trial of this cause. So standing the evidence as to the real consideration for the sale of goods claimed by appellees to have been made fraudulently, the court below gave the following charge: "In passing upon the issue of whether the alleged debt...

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25 cases
  • Mueller v. Schien
    • United States
    • Missouri Supreme Court
    • 6 Diciembre 1943
    ...N.E. 638; Tregoning v. Tregoning, 262 Ill. App. 489; D'Antoni v. Teche Lines, 163 Miss. 668, 143 So. 415; Baines v. Ullman, 71 Tex. 529, 9 S.W. 543; Finks v. Cox, 30 S.W. 512; Western Cottage Piano & Organ Co. v. Anderson, 45 Tex. Civ. App. 513, 101 S.W. 1061; Cleveland, C.C. & St. L.R. Co.......
  • Mueller v. Schien
    • United States
    • Missouri Supreme Court
    • 6 Diciembre 1943
    ... ... v ... Wahl, 160 N.E. 638; Tregoning v. Tregoning, 262 ... Ill.App. 489; D'Antoni v. Teche Lines, 163 Miss ... 668, 143 So. 415; Baines v. Ullman, 71 Tex. 529, 9 ... S.W. 543; Finks v. Cox, 30 S.W. 512; Western ... Cottage Piano & Organ Co. v. Anderson, 45 Tex. Civ. App ... ...
  • Carl v. Settegast
    • United States
    • Texas Court of Appeals
    • 27 Marzo 1919
    ...1 Greenleaf on Evidence, § 2; Wills v. Chowning, 90 Tex. 617, 40 S. W. 395, 59 Am. St. Rep. 842; Baines v. Ullmann, 71 Tex. 529, 9 S. W. 543; Brewer v. Doose, 146 S. W. 325; Moore v. Stone, 36 S. W. 909; Peden I. & S. Co. v. Jaimes, 162 S. W. 965; Rider v. Hunt, 6 Tex. Civ. App. 238, 25 S. ......
  • Seago v. New York Cent. R. Co.
    • United States
    • Missouri Supreme Court
    • 12 Junio 1941
    ... ... 270, 92 So. 444; Bierly v. Shelby ... Iron Co., 208 Ala. 25, 93 So. 829; D'Antoni v ... Teche Lines, 163 Miss. 668, 143 So. 415; Baines v ... Ullman, 71 Tex. 529, 9 S.W. 543; Detroit & I. Ry ... Co. v. Wahl, 160 N.E. 638; Brewer v. Doose, 146 ... S.W. 323; Finks v. Cox, 30 S.W ... ...
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