Broussard v. Lawson

• Citation: 124 S.W. 712
• Parties: BROUSSARD et al. v. LAWSON.
• Decision Date: 09 December 1909
• Court: Texas Court of Appeals

124 S.W. 712

BROUSSARD et al. v. LAWSON.

Court of Civil Appeals of Texas.

December 9, 1909.

On Appellee's Motion for Rehearing, January 6, 1910.

Rehearing Denied Appellants January 27, 1910.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

Action by Ottilie Womack against D. B. Lawson to enjoin the sale of property under an execution. Defendant filed a cross-bill against plaintiff and J. E. Broussard and A. F. Goodhue, sureties on plaintiff's injunction bond, and later dismissed his cross-bill as to plaintiff. Decree for cross-plaintiff, and the sureties appeal. Reversed and remanded.

A. D. Lipscomb, for appellants. J. Earl Preston, for appellee.

REESE, J.

D. B. Lawson, appellee, having a judgment of the county court of Grimes county against C. M. Womack, on July 24, 1903, had an execution thereon levied by the sheriff of Jefferson county on a crop of rice planted and growing upon 300 acres of land, which the said C. M. Womack had rented from the Beaumont Irrigation Company. The execution was returned for want of time to make the sale, and a venditioni exponas issued under which the sheriff was ordered to make sale, and to deliver possession to the purchaser. This suit was then instituted against Lawson and the sheriff by Ottilie Womack, wife of C. M. Womack, to enjoin the sale of the property under the execution. It was alleged that the husband of plaintiff refused to join her in the suit, and she asked to be allowed to prosecute the same alone. The rice crop was alleged to be of the value of $5,000 and to be separate property of plaintiff, who further alleged that she was unable to give a claimant's bond for trial of the right of property. On October 6, 1903, a temporary injunction was granted, the plaintiff executing an injunction bond in the sum of $1,000, with J. E. Broussard and A. F. Goodhue as sureties. The sheriff answered by general denial November 4, 1904. On January 5, 1906, Lawson filed an amended answer, containing a general demurrer and special exception to the jurisdiction of the court, on the ground that the writ of injunction should have been returned to the county court of Grimes county. The answer also contained general denial and special denial of plaintiff's ownership of the property, with the allegations that the conveyance of the same to her by C. M. Womack, if any such was ever made, was in fraud of his creditors and especially of defendant; that, upon the issuance and service of the injunction, the rice crop had been turned over to the said C. M. Womack and the sureties on his bond, and had been disposed of by them for their mutual benefit. With much fullness of averment it is charged that plaintiff's claim, the injunction, and subsequent proceedings was the result of a fraudulent conspiracy between plaintiff and her said husband to defeat the just and lawful attempt of defendant to subject the same to his said debt. There is a prayer for the dissolution of the injunction and for judgment against plaintiff and the said sureties for the amount shown to be due upon his said judgment, and for his damages and costs and general relief.

On November 15, 1907, Lawson filed a further supplemental answer, alleging that since the filing of the amended answer Ottilie Womack had died intestate and wholly and totally insolvent, leaving no estate whatever, separate or community, and that there had been no administration on her estate; that since filing the suit the said C. M. Womack had been adjudicated a bankrupt, and had been regularly discharged from all his debts. Upon these facts, he prayed the court to permit him to dismiss his cross-bill as to the said plaintiff and to prosecute the same against the said sureties on her injunction bond, and that he have judgment against them for the amount of his original debt. To the amended answer and cross-bill of Lawson filed January 5, 1906, Broussard and Goodhue on March 8, 1906, filed their answer containing general demurrer and general denial, and, further answering, they denied specially the charge of collusion and fraud on their part, alleging that they became sureties on Mrs. Womack's injunction bond under the belief in good faith that she was the owner of the crop of rice in question by a bona fide assignment and transfer of the same by her said husband; that the said Ottilie Womack is now out of Jefferson county, and they do not know where either she or her said husband are to be found, and that both of them are wholly insolvent and unable to respond in damages in any sum whatever in this suit; and that it is necessary for the said sureties to defend the said cross-bill for their own protection. It is further alleged that the said rice crop was grown on land leased from the Beaumont Irrigation Company, and that, even if the said C. M. Womack had been the owner of the same, yet the same would have been wholly valueless to any one who should have purchased the same at execution sale against him, because wholly immature and requiring constant care, and a stranger to the rental contract would not have been admitted to the possession of the land. It is further alleged that the beneficial interest of the tenant, whether C. M. Womack or the said Ottilie Womack, had been entirely absorbed in payment of claims of the landlord for land rent, water rate, and for advances to be used in making the crop, which amounted to more than the value of the interest of the tenant. On March 8, 1906, the plaintiff, Ottilie Womack, filed a supplemental petition, answering the original cross-bill of defendant, Lawson, alleging that she is a married woman, living with her husband, and pleading in abatement of said cross-bill the failure to make her said husband a party thereto. The case came on for trial December 5, 1908, without a jury, and resulted in a judgment for defendant, Lawson, on his cross-bill against Broussard and Goodhue for the amount of his original judgment against C. M. Womack, with interest and costs. All demurrers and exceptions were overruled. Preliminary to the judgment proper and a part thereof is the following recital and order: "Thereupon the plaintiff's attorney suggested the death of the plaintiff, and that her legal representatives had not been made parties. And it further being made to appear to the court that the death of plaintiff had been suggested to the court more than a year ago, and the cause continued to make parties, the...