Blum v. Bassett

• Decision Date: 21 December 1886
• Citation: Blum v. Bassett, 3 S.W. 33 (Tex. 1886)
• Court: Texas Supreme Court
• Parties: BLUM and another <I>v.</I> BASSETT and others.

3 S.W. 33

BLUM and another

v. BASSETT and others.

Supreme Court of Texas.

December 21, 1886.

Appeal from Washington county.

This suit was brought by Leon & H. Blum, junior attaching creditors of H. Cohn, against Bassett & Bassett, Charles Wenar, J. S. Newbauer, and others, seeking to set aside the attachments of Bassett & Bassett, J. S. Newbauer & Bro., Charles Wenar, Isaac Heidenheimer, and S. Lederer, on the ground that they were fraudulent and collusive, and the claims fictitious, and to have the property levied on under the writs of Bassett & Bassett et al. first subjected to the payment of the debt of Leon & H. Blum. The sheriff and clerk were joined as defendants. The suit was filed on the twenty-ninth of February, 1884. On the eleventh of September, 1884, a subpœna was issued for C. B. Shepard, F. A. Engelke, Thomas Dwyer, and others. It was served on the seventeenth of September, by J. L. Moore, sheriff, by A. W. Gilder, deputy. Said Moore was a party defendant. On the eleventh of September the case was set for trial on the eighteenth of that month. On the call of the case on that day the witnesses above named failed to answer, and the appellants, plaintiffs in the court below, presented their application for a continuance on account of their absence. While the application was being read, the witness Engelke came into court, and on the next day the witness Dwyer came in and testified; but Shepard was not present during the trial, which lasted from the eighteenth to the twenty-fourth of the month. During the trial it was shown by the testimony of W. W. Searcy, one of the appellants' attorneys, and who was a son-in-law of Mr. Shepard, that he was at home sick in bed; lives about half a mile from the court-house; had been sick two or three weeks; and was sick at the time he was subpœnaed in this case as a witness. It did not appear from the application for the continuance that the fees had been tendered the witness. The affidavit was made by an agent of the plaintiffs, and showed no reason why it was not made by the plaintiffs themselves. Judgment was rendered for defendants, from which plaintiffs appeal.

Scott & Levi, Garrett, Searcy & Bryan, and C. R. Breedlove, for plaintiffs.

(1) The application for continuance being the first application, and in form in compliance with the statute, the court erred in refusing to grant the same. The application was in due form, and was the first application for a continuance. Rev. St. art. 1277; Lieb v. Washington Co., Galveston term, 1885; Prewitt v. Everett, 10 Tex. 283; McMahan v. Busby, 29 Tex. 191.

(2) The court erred in refusing to permit the witnesses Giddings, Engelke, and Dwyer to testify when asked by plaintiffs as to whether it was customary or usual in banking business to let a man of Cohn's business standing in Brenham have as much money as $2,000 in the month of February, 1883, without security. The plaintiffs attacked the claim of Bassett & Bassett for fraud. Bassett & Bassett claimed to have loaned Cohn $2,000 without security. The facts show that Cohn had no commercial standing in Brenham, and that he was insolvent. Giddings and Engelke were both bankers in Brenham. Dwyer was a capitalist and a large merchant. The plaintiffs sought to show by these witnesses that the transaction of Bassett with Cohn was unusual and out of the usual course of business; that B. H. Bassett, one of the members of the firm of Bassett & Bassett, had repeatedly filed suit against H. Cohn, and knew of his being bad pay, etc.

(3) The court erred in refusing to permit the witnesses Giddings, Engelke, and Dwyer to testify as to whether the loan claimed to have been made by Bassett & Bassett to Cohn was a usual transaction, and one to be expected of bankers. The question asked the witnesses, which the court refused to permit them to answer, is as follows: "It is in evidence in this case that on February 12, 1883, Henry Cohn gave to Bassett & Bassett his note for $500, due in 20 days, there being a pencil memorandum at the bottom of the note, `No interest to be charged for 60 days;' and also on the same day he gave to Bassett & Bassett another note for $500, payable in 10 days, with the same memorandum, `No interest to be charged for 60 days;' and on the same day a third note for $500, due in 40 days, with the same memorandum as to interest; and on the same day he executed to Bassett & Bassett another note for $500, due in 30 days, with the same memorandum as to interest. All of these notes stipulated in their body, interest from maturity. State if at that season of the year, at that time, that a man of Cohn's credit and standing in the community, and his previous history here, and in view of the standing of Bassett & Bassett as bankers, a transaction of that kind between them, without any security for this paper, and the facts viewed in all other respects, was it a usual transaction, or one that was to be expected." Bump, Fraud. Conv. 50.

(4) The court erred in excluding the tax-rolls of Washington county for the year 1883, as offered by the plaintiffs, for the purpose of showing the amount of capital that Bassett & Bassett had on the first day of January, 1883, which said tax-rolls show that the only property that Bassett & Bassett had was $12,775 real estate.

(5) The court erred in refusing to permit the witness J. S. Newbauer to state what facts he knew of that justified him in making an affidavit for an attachment that Henry Cohn was about to transfer his property for the purpose of defrauding his creditors. The witness was asked the following question, which the court refused to permit him to answer: "You state in the affidavit for attachment that Henry Cohn is about to dispose of his property for the purpose of defrauding his creditors. State the facts which you had within your knowledge that justified you in making the affidavit. Secondly, did you know any facts, or have any knowledge of any facts, to the effect that Henry Cohn was about to dispose of his property to defraud his creditors?" Newbauer had attached Cohn by invitation of Charles Wenar, a son-in-law of Cohn's, who had also attached Cohn ahead of Newbauer. His attachment was sued out on the ground that Cohn was about to dispose of his property with intent to defraud his creditors. Newbauer also made affidavit in the case of Heidenheimer against Cohn, whose attachment was sued out upon the same ground.

Sayles & Bassett, for appellees, Bassett & Bassett.

(1) There was no error in overruling appellant's application for continuance, because the application did not show the exercise of due diligence to secure the attendance of the witness. The deputy-sheriff could not execute process in a suit to which the sheriff was a party. The statute requires process to be issued "to the sheriff or any constable," (Rev. St. art. 1215,) and, the sheriff being a party to the suit, the service should have been executed by the constable, (Kirk v. Murphy, 16 Tex. 654; Powell v. Wilson, Id. 59; Oliphant v. Dallas, 15 Tex. 138; Sample v. Irwin, 45 Tex. 567.) Due diligence must be shown by the application, (Rev. St. art. 1277; Greenl. Ev. § 310;) and due diligence required the tender of fees to the...