Bruyere v. Liberty Nat. Bank of Waco

• Citation: 262 S.W. 844
• Decision Date: 27 March 1924
• Docket Number: (No. 32.)
• Parties: BRUYERE et al. v. LIBERTY NAT. BANK OF WACO.
• Court: Court of Appeals of Texas

262 S.W. 844

BRUYERE et al. v. LIBERTY NAT. BANK OF WACO.

(No. 32.)

Court of Civil Appeals of Texas. Waco.

March 27, 1924.

Rehearing Denied June 12, 1924.

Appeal from District Court, McLennan County; James P. Alexander, Judge.

Action by the Liberty National Bank of Waco against E. H. Bruyere and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Witt, Terrell & Witt, of Waco, for appellants.

Bryan & Maxwell, of Waco, for appellee.

SPIVEY, J.

This is a suit by appellee against appellant E. H. Bruyere upon certain promissory notes, some of which were executed by him alone, and some by him and other persons not necessary to mention. Appellant Mrs. W. A. Bruyere was made a party defendant at the beginning of the suit, and an attachment was issued at the same time and levied upon certain lots in the city of Waco. Mrs. Bruyere claimed two of these lots as her separate property by virtue of a parol gift made to her by her husband in 1918, and of the material and labor with which thereafter the improvements were erected, all of which was prior to the existence of any indebtedness of her husband disclosed of record herein. She also pleaded that thereafter, on January 1, 1921, pursuant to such parol gift, her husband executed and delivered to her a warranty deed to said two lots, and that at said time he was solvent. The evidence shows that the indebtedness sued upon came into existence after the parol gift of both the lots and the improvements erected thereon, but prior to the making and delivery of said deed.

Appellee also set up that Mrs. Bruyere was claiming the two lots under and by virtue of the above-mentioned deed to her, but that the husband in fact had title and had represented to appellee that he owned said two lots, and that appellee's loans were made, or were renewed upon the faith of these representations, and that the deed of gift to the wife was executed while the husband was insolvent, and was therefore void as to his creditors. Appellee therefore prayed judgment for its debt against Mr. Bruyere, and for foreclosure of its attachment lien against both Mr. and Mrs. Bruyere upon said two lots, together with other property shown by the return on the writ of attachment. Mrs. Bruyere prayed judgment for the title and possession of the two lots so claimed by her.

Appellants assign error upon the refusal of the court to quash the attachment proceeding in response to their motion therefor. No objection is made to the affidavit of bond. Their first objection to the writ is that, at the time of the issuance and levy, the suit was pending in the Seventy-Fourth judicial district court of McLennan county, and that the writ as issued by R. V. McClain "simply shows that it was issued by him as clerk of the district court of McLennan county, Texas, and does not show that same was issued and officially attested by him as clerk of the Seventy-Fourth district court in and for McLennan county, Texas"; second, that said writ further provides "that the same (referring to the property to be attached) may be liable to further proceedings thereon to be had before the district court in Waco, in the county of McLennan, on the 8th day of August, 1921, and does not show that said property was liable to further proceedings thereon to be had before the Seventy-Fourth district court in and for McLennan county"; and, third, "because it does not state before a district court for the state of Texas, but simply says to be had before the district court in the county of McLennan, without stating `in the state of Texas.'"

Counsel for both the appellants and appellee agree in their statement that the suit was originally filed in the district court of McLennan county for the Seventy-Fourth judicial district, and was pending there when the writ was issued, and that later the case was transferred to the Nineteenth district court, and was there tried. The writ is as follows:

"The State of Texas to the Sheriff or Any Constable of McLennan County—Greeting:

"We command you that you attach forthwith so much of the property of E. H. Bruyere and Mrs. W. A. Bruyere, if to be found in your county, repleviable on security, as shall be of value sufficient to make the sum of eighteen thousand five hundred and no/100 dollars, and the probable costs of suit, to satisfy the demand of the Liberty National Bank of Waco, a banking corporation, and that you keep and secure in your hands the property so attached, unless replevied, that the same may be liable to further proceedings thereon, to be had before the district court in Waco, in the county of McLennan, on the 8th day of August, 1921, when and where you shall make known how you executed this writ.

"Witness my hand and the seal of said court at office in the city of Waco, this 22d day of June, 1921. Attest: R. V. McClain, Clerk District Court, McLennan County, Texas. [Seal.]"

It bears the indorsement of the same style and number as the other papers in the case and the date of its issuance.

Article 240 of the Revised Statutes provides that judges and clerks of the district and county courts and justices of the peace may issue writs of original attachment, returnable to their respective courts, under certain prescribed conditions. McLennan county, as we judicially know, has three district courts, and but one clerk for the three, who is required to perform all of the duties pertaining to the clerkship of each of said courts. Acts Reg. Sess. 1893, c. 46; Acts Reg. Sess. 1915, c. 3 (Vernon's Ann. Civ. St. Supp. 1918, art. 30, subds. 19, 54, 74). Under the law existing at the time this suit was filed and writ issued, a regular term for the Seventy-Fourth judicial district, composed of McLennan county alone, was required to be held beginning Monday, August 8, 1921, of which fact both the clerk and the officer levying the writ, as well as appellants, were charged with knowledge, and the writ accordingly directs the officer to make return on that date, without, however, stating that it is the first day of that term of that court. Under the law no other district court of McLennan county was provided to begin a regular term on that date, and this the clerk and the levying officer and appellants must be held to have known also. By R. S. art. 1700, the clerk is made custodian of all papers deposited in his office with him in his capacity as clerk, and there is no law, nor any practice known to us, providing any mode of return of a writ to a district or county court, except by delivery to its clerk. In the case of citations, the law concerning which merits and receives a strict construction, article 1852 of the Statutes requires that the citation shall command the officer to summon the defendant "to appear * * * at the next regular term of the court, stating the time and place of holding the same"; and it has been held thereunder that a citation which states the time and place of holding the next regular term of the court is sufficient, without containing the expression "at the next regular term of the court" (Cave v. City of Houston, 65 Tex. 619), and that a citation is sufficient where the date on which it is made returnable corresponds to the date of the first day of the next term of the court (De Walt v. Zeigler, 9 Tex. Civ. App. 82, 29 S. W. 61). For the above reasons and facts, we think that the writ was not required to be attested by the clerk as clerk of the Seventy-Fourth judicial district court, and that it fully advised the levying officer when and to whom and where to return the same, and that it was made returnable on the first day of the next regular term of the Seventy-Fourth judicial district court in and for McLennan county, where the suit was pending.

As to the third objection, that the writ does not state in the body of it that the proceedings are to be had before a district court "in the state of Texas," the Constitution and the statutes require that the style of all writs and process shall be in the name of the state of Texas, and the Legislature, in prescribing the form of writ of attachment, does not provide that it show or contain the name of the state in the body of the writ. The clerk would have no authority to issue such writ to any officer outside of the state, nor would any officer outside of the state have authority to execute such writ, even if directed to him. Generally speaking, statutes of a state have no extraterritorial force, and a writ, the creature of them, can rise no higher. In the case of citations it has been held that a citation directed to the sheriff of Caldwell county, to be published in a named newspaper, summoning the defendant to appear before a named justice of the peace at his office in the town of Lockhart, is not void, and that the court knows judicially that Lockhart is the county seat of Caldwell county, and that the citation was good, although. "Caldwell county" was not written after "Lockhart." Hambel v. Davis, 89 Tex. 256, 34 S. W. 439, 59 Am. St. Rep. 46. This court judicially knows that Waco is the county seat of McLennan county, in the state of Texas, and the levying officer and appellants would have the same knowledge. The writ runs in the name of the state of Texas, and is signed by the clerk of a district court of the state of Texas, and was sufficient, although the body of it did not show or recite that McLennan county was in the state of Texas.

The court submitted three issues; the first two being kindred and substantially as follows: Whether or not E. H. Bruyere, at or about the time stated above, made the parol gifts to his wife—and the third, whether or not on January 1, 1921, the date of the written conveyance to Mrs. Bruyere by her husband, he was solvent. The jury answered each of the three issues in the negative, and upon the answers, and the facts found by the court, judgment was rendered in favor of appellee for its debts, and against both appellants for foreclosure upon the two lots claimed by...