Blum v. Jones

• Court: Texas Supreme Court
• Writing for the Court: Gaines
• Citation: Blum v. Jones, 25 S.W. 694, 86 Tex. 492 (Tex. 1894)
• Decision Date: 19 March 1894
• Parties: BLUM et al. v. JONES et al.

25 S.W. 694

BLUM et al. v. JONES et al.

Supreme Court of Texas.

March 19, 1894.

Error from court of civil appeals of fourth supreme judicial district.

Action by Leon & H. Blum and others against W. H. Jones and others. A judgment for defendants was affirmed by the court of civil appeals, (23 S. W. 844,) and plaintiffs bring error. Reversed.

Denman & Franklin, for plaintiffs in error. H. C. Carter, for defendants in error.

GAINES, J.

This suit was brought by the plaintiffs in error against the defendant in error Jones as sheriff, and other defendants as sureties on his official bond, to recover the value of certain goods seized by the officer under certain writs of attachment. The plaintiffs in the writs had given the sheriff a bond of indemnity, and therefore made themselves parties defendant. There was a verdict and judgment for the defendants, and the judgment, having been appealed from, was affirmed by the court of civil appeals.

The plaintiffs alleged their property in the goods, and that they were taken under writs of attachment issued against the effects of one Friedlander. The defendants in their answer justified the taking by virtue of the process, and alleged that the plaintiffs claimed the property under a transfer from Friedlander, the defendant therein, and that the transfer was fraudulent and void as to Friedlander's creditors. It was averred in the answer, in substance, that the transfer was effected in pursuance of a fraudulent combination between the plaintiffs and Friedlander, in which it was agreed that Friedlander should purchase upon a credit, to the extent of his ability, goods of merchants throughout the country, and should dispose of them to the plaintiffs in satisfaction of an alleged indebtedness. In the second place it was alleged, in effect, that Friedlander was not indebted to plaintiffs, and that the sale was pretended, and was without consideration; and, in the third, that if the indebtedness from Friedlander to plaintiffs which was purported to be extinguished by the sale, and debts to others which the plaintiffs assumed to pay in the transaction, were real, the value of the goods was greatly in excess of their amount, and that therefore the transaction was fraudulent.

In disposing of the questions presented in this court, we deem it proper to refrain, as far as possible, from commenting upon the weight of the testimony. There were circumstances adduced in evidence which tended to show that the sale of the goods was the result of a fraudulent combination between the plaintiffs and Friedlander, as alleged in the answer; and there was a conflict in the testimony upon the question whether the value of the goods at the time of the transfer exceeded the credit given by the plaintiffs upon their own claim and the indebtedness which they assumed to pay. The court, in connection with other charges, instructed the jury, in effect, that if Friedlander was justly indebted to plaintiffs, as claimed by them, and to the others whose claims they agreed to pay; and that if the value of the goods received from Friedlander by the plaintiffs was not more than was reasonably sufficient to pay the amount of their own claim, which was satisfied in the transaction, and of the assumed debts; and if the sale was bona fide, — they should find for the plaintiffs; but that if Friedlander was not indebted to plaintiffs or if the value of the goods was more than was reasonably sufficient to pay the amounts which they were transferred to pay, they should find for defendants.

We think the testimony which is complained of in the second assignment of error was correctly admitted. There was an issue of a fraudulent confederation between Friedlander and the plaintiffs, and it was proper to show confidential business relations between the parties. We are also of opinion that it was not error to admit the answers of the witness Blum to the cross interrogatories propounded to him on behalf of the defendants as to the manner in which his answers had been prepared and taken down, and as to the persons present at the time of taking his deposition. On the other hand, we think that the testimony to the effect that the notary who took the deposition of Sylvan Blum, who was one of the plaintiffs, was an employe of the plaintiffs, should have been excluded. A deposition taken by an officer not legally competent for any reason to perform that duty ought to be suppressed upon a written motion seasonably filed. But, if not suppressed, the party offering it is entitled to have it read, without the discredit which may attach to it in the minds of the jury by proof of the fact that the officer, by reason of his relation to the parties, was not legally authorized to take it. Such proof is calculated to prejudice the testimony with the jury,...