Butler v. Nail

• Decision Date: 14 November 1930
• Docket Number: No. 745.,745.
• Citation: 36 S.W.2d 307
• Parties: BUTLER et al. v. NAIL et al.
• Court: Texas Court of Appeals

36 S.W.2d 307

BUTLER et al. v. NAIL et al.

No. 745.

Court of Civil Appeals of Texas. Eastland.

November 14, 1930.

Rehearing Denied March 13, 1931.

Appeal from District Court, Shackelford County; M. S. Long, Judge.

Action by W. R. Nail and others against G. C. Butler and others. Judgment for plaintiffs, and defendants appeal.

Affirmed in part, and reversed and rendered in part.

Jas. G. Harrell, of Breckenridge, F. L. Kuykendall and A. M. Howsley, both of Albany, and Murchison & Davis, of Haskell, for appellants.

Thomas L. Blanton and Matthews Blanton, both of Abilene, for appellees.

FUNDERBURK, J.

Plaintiffs' first amended original petition in this case named as plaintiffs W. R. Nail, John H. Sedwick, John F. Sedwick, W. G. Webb, W. Graham Webb, Jr., Thos. L. Blanton, Jr., Hugh Sherwood, Watt R. Matthews, and General Neon Sales Company of Texas, and recited that G. C. Butler, who had originally been named as one of the plaintiffs, was improperly joined as a party plaintiff, but should be a defendant, and thereupon named G. C. Butler and other parties as defendants. A part of the recovery sought in said pleading was the sum of $9,750, consisting of $1,625 paid by each of said plaintiffs W. R. Nail, John H. Sedwick, John F. Sedwick, W. G. Webb, W. Graham Webb, Jr., and Thos. L. Blanton, Jr., to certain of the defendants, and the recovery of which was sought on the ground of fraud. Certain of the plaintiffs sued out a writ of attachment. The affidavit for attachment, after giving the style and number of the suit and naming the court in which pending, reads: "Before me, the undersigned authority, on this day personally appeared W. R. Nail, John Horace Sedwick, W. G. Webb, John F. Sedwick and W. Graham Webb, Jr., plaintiffs in attachment in the above styled and numbered cause," etc. The affidavit further states: "That G. C. Butler, one of the defendants, is justly indebted to the plaintiffs in the sum of Ninety Seven Hundred Fifty and no/100 Dollars," and, "that the said defendant, G. C. Butler, is about to dispose of his property with intent to defraud his creditors," and "that the debt due the plaintiffs in the above cause No. 1254 is due for property obtained under false pretenses." The affidavit is subscribed and sworn to by W. G. Webb, John F. Sedwick, W. R. Nail, John Horace Sedwick, and W. Graham Webb, Jr. On the same sheet with said affidavit was the bond in attachment, giving the same style and number of the suit and reciting as principals the names of those signing the affidavit, with the addition of Thos. L. Blanton, Jr. The bond is signed by all said parties, the name of Thos. L. Blanton, Jr., being signed by Thos. L. Blanton. Thereafter, all proceedings in reference to the attachment were as if Thos. L. Blanton, Jr., had joined with the others in the affidavit for attachment. The defendant G. C. Butler replevied the property attached and Chas. R. Compton and Henry Compton were sureties on the replevy bond. The Comptons filed a plea of intervention in the suit and moved the court to quash the attachment proceedings because of a variance between the petition of the plaintiffs (first amended original petition being the one on file at the time the affidavit was made) and the affidavit for attachment. The variance claimed was that the petition sought recovery in favor of the six plaintiffs hereinbefore named, of the sum of $9,750, and the affidavit alleged that that amount was due to the five plaintiffs making the affidavit for attachment. Another ground alleged was that the affidavit for attachment set up two distinct statutory grounds inconsistent with each other, namely: (1) That said G. C. Butler was about to dispose of his property for the purpose of defrauding his creditors, and (2) that the debt sued for was due for property obtained under false pretenses. The court overruled the motion to quash and the interveners took a bill of exceptions showing the foregoing facts.

The case was tried upon plaintiffs' third amended original petition, which named as plaintiffs W. R. Nail, John H. Sedwick, John F. Sedwick, W. G. Webb, W. Graham Webb, Jr., Thos. L. Blanton, Jr., and the General Neon Sales Company of Texas. and contained the same claim for recovery of $9,750 in favor of the first named six plaintiffs upon the theory that each had paid $1,625, which payment had been induced by fraud. The court gave judgment for plaintiffs against certain defendants, including the defendant G. C. Butler, for said sum of $9,750, and also gave judgment in the same amount in favor of plaintiffs against the said Henry and Chas. R. Compton, the sureties on the replevy bond of G. C. Butler. From said judgment the defendant G. C. Butler and the interveners Henry and Chas. R. Compton have appealed.

The appellant G. C. Butler, although having filed a brief, has presented no propositions contending that the judgment is erroneous, save and except such questions as are presented by appellants Henry and Chas. R. Compton. Such errors, if they exist, injuriously affect only the said Comptons and not Butler. The judgment of the trial court as against Butler and the other defendants will therefore be affirmed.

Appellants Henry and Chas. R. Compton urge two propositions for the reversal of the judgment as to them. One contention is that the court erred in refusing to quash the attachment proceedings, in response to their motion, on the ground that the affidavit for attachment set forth two different statutory grounds inconsistent with each other. This proposition we overrule. There is no inconsistency in a declaration that "defendant G. C. Butler is about to dispose of his property with intent to defraud his creditors," and the further declaration that "the debt due the plaintiffs in the above cause No. 1254 is due for property obtained under false pretenses." Both grounds being consistent, the affidavit, so far as that point was concerned, was sufficient to support the writ of attachment. McKay v. Elder (Tex. Civ. App.) 92 S. W. 268; Dunnembaum v. Schram, 59 Tex. 281; Woldert v. Nedderhut, etc., Co., 18 Tex. Civ. App. 602, 46 S. W. 378.

The proposition asserting that there was a fatal variance between the affidavit and the plaintiffs' petition, we think, must be sustained. The petition on file at the time the affidavit was made asserted definite claim for recovery of the sum of $9,750 in behalf of six of the plaintiffs, the allegation showing that each of said plaintiffs had an individual interest in the total to the extent of $1,625. The affidavit was signed and sworn to by five only of the plaintiffs: the plaintiffs Thos. L. Blanton, Jr., Hugh Sherwood, Watt R. Matthews, and General Neon Sales Company of Texas not joining therein. None of the five plaintiffs signing the affidavit purported to sign as either agent or attorney for any one else. The plaintiffs signing the affidavit designated themselves "plaintiffs in attachment in the above styled and numbered cause." The affidavit, however, in stating the "amount of the demand," stated same to be $9,750.

In its final analysis the real question presented is: Does the statute (R. S. art. 275), in requiring that the affidavit state "the amount of the demand," mean the amount claimed by all the plaintiffs, regardless of how many join in making the affidavit; or, does it mean the amount of the demand of those plaintiffs (when less than all) making the affidavit?

A few principles well settled by the decisions will materially aid in arriving at the proper conclusion. A joinder of all plaintiffs in procuring an attachment certainly is not a prerequisite for any of them doing so. An affidavit for attachment must be made and signed by each plaintiff who claims the benefit of the attachment. The signing must be by each plaintiff personally, or by his agent or attorney. R. S. 1925, arts. 275 and 23. When signed by an agent or attorney, the affiant must be described or designated as such in the affidavit. Cherryhomes v. Carter, 66 Tex. 166, 18 S. W. 443; Willis v. Lyman, 22 Tex. 268; Hook v. Payne (Tex. Civ. App.) 185 S. W. 1014; Interstate Amusement Co. v. Fisher (Tex. Civ. App.) 263 S. W. 644; Turman v. State (Tex. Civ. App.) 26 S.W.(2d) 661.

No essential fact not affirmatively appearing will be presumed in aid of such proceedings. Perrill v. Kaufman, 72 Tex. 214, 12 S. W. 125.

The conclusion is inescapable that four plaintiffs did not join in making the affidavit for attachment. It is certain that one of such plaintiffs, Thos. L. Blanton, Jr., with the five plaintiffs making the affidavit, joined together in the demand for recovery of the sum of $9,750, each claiming one-sixth, as disclosed by the allegations of the petition. It is equally certain that either the five plaintiffs making the affidavit stated the amount of their demand to be $9,750, which would be greater than the demand of such sum by six plaintiffs in equal proportions, or else, in stating the amount of this demand, they included the demand of another plaintiff not making or subscribing to the affidavit. The law requires that the amount of the demand stated in the affidavit be at least no more than that in the petition. 5 Tex. Jur. § 94; Joiner v. Perkins, 59 Tex. 300; Sanger v. Texas Gin., etc., Co. (Tex. Civ. App.) 47 S. W. 740; Moore v. Corley (Tex. App.) 16 S. W. 787.

Clearly, if five plaintiffs demand $9,750, the demand of each is more than the demand of each of six plaintiffs for the same amount. Can some of the plaintiffs include in the amount of the demand required to be stated in a valid affidavit, the demand of other plaintiffs not joining in the affidavit? We think not. If so, no reason appears why the demand of some one not a party to the suit may not also be included. Suppose A and B have a demand against C amounting to $1,000. The interest of each in the total amount is $500. A files suit, but B does not. Can A procure the issuance of a writ of attachment by stating in his affidavit therefor...