Campbell v. Wilson

• Decision Date: 01 January 1851
• Citation: 6 Tex. 379
• Parties: CAMPBELL v. WILSON.
• Court: Texas Supreme Court

6 Tex. 379

CAMPBELL

v.WILSON.

Supreme Court of Texas.

1851.

The general principle of international law seems to be that without a proceeding in rem of personal notice to the defendant by process served within the territory jurisdiction can not be rightfully exercised; for, “considered in an international point of view, jurisdiction to be rightfully exercised must be founded on the person being within the territory or the thing being within the territory.” But as every State has the right to prescribe the manner in which its own courts shall acquire and exercise jurisdiction, proceedings conducted in the mode prescribed will of course be valid within the territory. Hence, when our statute provides that service in certain cases may be made by publication, the jurisdiction of the court thus acquired cannot be questioned here, however the judgment might be treated, if made the foundation of an action in another State. (Note 68.)

Where the plaintiff and defendant were non-residents and the suit was commenced by attachment the defendant appeared and answered to the merits and obtained a continuance; afterwards, on motion of the defendant, the attachment was quashed, the defendant then moving to dismiss the suit for want of jurisdiction: Held, That he had submitted to the exercise of jurisdiction over his person, and it was too late to claim his personal immunity and to object to the exercise of the jurisdiction of the court on that ground. (Note 69.)

Where an inhabitant of the State is sued out of the county in which he has his domicile he should plead the fact in abatement of the suit. (Note 70.)

The case of Ward v. Lathrop (4 Tex. R., 180) reconcilable with this case.

In proceeding by attachment the incipient steps should be as nearly cotemporaneous as they conveniently may be, so that suspicion be not thrown upon the fairness of the plaintiff's case. There should not be such delay as to afford a presumption that the facts stated in the affidavit had ceased to exist. Where the affidavit was made on the sixth, the bond bore date on the seventh and was filed on the ninth, and the attachment, &c., issued on the eleventh: Held, That the delay did not justify the quashing of the attachment on that ground. (Note 71.)

The act of 1840 (Hart. Dig., p. 771) did not require “due diligence” to bind the drawer of a bill where there was no acceptance. But quere whether the law merchant did not apply in such a case. (Note 72.)

Rulings of the court below, which obviously cannot affect the ultimate decision of the case cannot constitute grounds for reversing a judgment.

Appeal from Harrison. This suit was brought by the appellee as payee to recover of the appellant as drawer the amount due upon a bill of exchange, as follows:

“Bowie county, Texas, December 21, 1844. Messrs. Fellows, Johnson & Co., commission merchants, New Orleans: Pay to Emzy Wilson of order six thousand dollars, and charge the same to my account.

JAMES P. CAMPBELL.”

The petition stated that the residence of the plaintiff was in the State of Arkansas and that of the defendant in the State of Missouri. It set out the instrument sued on and alleged its making and delivery in this State; it alleged the presentation to and demand of payment of the drawees on the 5th day of March, 1845, the protest for non-payment, and notice thereof to the defendant; it further alleged that the drawees had no effects of the defendant in their hands, neither at the time of the drawing of the bill, nor from that time to nor at the time when the same was protested for non-payment, and that there was no consideration moving from the drawer to the drawees for the acceptance or payment of the bill. The bill of exchange sued on and the protest for non-payment and certificate of notice to the defendant were made exhibits to the petition. It was further alleged that on the 13th day of December, 1845, the defendant paid to the plaintiff upon said bill the sum of $1,163 and 10 cents and the interest thereon, and on the 17th day of May, 1846, the further sum of $2,500 and the interest thereon; but that he refused to pay the residue of the bill, to recover which this suit was brought. There was also a claim for the cost of protest and notice and the damages for re-exchange, which does not appear to have been ultimately insisted on or allowed. The petition further alleged that the defendant had property within the jurisdiction of the court subject to attachment, and that James D. Todd, who resided in that county, had effects of the defendant in his hands, and that John W. Scott, who resided in the county of Cass, was largely indebted to the defendant. The petition concluded with a prayer for a citation to the defendant, and a writ of attachment to be levied on his property, and that Todd and Scott be summoned as garnishees to answer, &c. Appended to the petition was an affidavit of the truth of its contents, the nature and amount of indebtedness, that the defendant was not a resident of this State, and that the attachment was not sued out for the purpose of injuring the defendant. The affidavit was made on the 6th day of September, 1848, the bond bore date on the 7th and was filed on the 9th, and the attachment, citation, and other process issued on the 11th day of the same month. The attachment was levied the day it issued. Todd and Scott were summoned as garnishees. The citation to the defendant was returned not executed. On the 13th of the same month a citation was issued to Cass county, which was returned executed by personal service on the 23d day of November thereafter. The answer of the garnishees, Todd and Scott, showed an indebtedness on the part of the latter to the defendant of two promissory notes in the hands of the former, not then due, for the sum of $3,250 each. At the December Term, 1848, being the first term after service, the defendant appeared and filed his answer, consisting of exceptions to the petition and objections to the want of due and legal diligence to charge the defendant as drawer of the bill. He further answered by a general denial; a plea of failure of consideration; accord and satisfaction; reconvention; a former judgment; a plea that the cause of action was barred, because the plaintiff did not bring suit against the defendant in the county of Bowie, “where the defendant then resided,” by the first or second term of the court thereof after the cause of action accrued; and a like plea of a failure to bring suit to the first or second term of the District Court of Cass county, in this State, “where the said defendant resided at the institution of this suit.” The cause was continued as on affidavit of the defendant. At the June Term, 1849, the defendant moved the court to quash the levy upon the attachment for causes assigned in the motion. He also moved the courts to abate the writs of attachment and garnishment, and to strike out the answers of the garnishees, for various reasons assigned in the several motions made by him, but one of which, relating to the attachment, is noticed by the court, which was the lapse of time between the affidavit, bond, and issuing of the writ. On a subsequent day of the term he moved the court to dismiss the cause for the want of jurisdiction. The plaintiff amended his petition by way of replication to the plea of a want of diligence, alleging that the defendant ceased to be a citizen of the State before the first term of the District Court of Bowie county after the accruing of the cause of action.

The court sustained the motion to quash the writs of attachment and garnishment and to strike out the answers of the garnishees. The motion to dismiss the case and the exceptions to the petition and amendment thereof were overruled. At the trial the plaintiff gave in evidence the bill of exchange sued on and the protest. He proved by a witness (Todd) that the defendant left Texas about the 20th of February, 1845, or between that and the 1st of March of that year; that he (witness) had frequently heard the defendant say that he owed the plaintiff the balance claimed by him upon the draft sued on; that he offered to pay it in notes, and once wanted the plaintiff to take a negro upon the debt, but the parties did not agree as to the notes and negro; the witness stated that he had heard the defendant make these admissions within three months previous to the trial, and he had heard him admit to the plaintiff that he owed the debt. This witness proved the payment of twenty-five hundred dollars upon the draft on the 7th day of May, 1846. He had heard the defendant say that the draft had been dishonored, and that he had received a copy of the protest and notice. The defendant came to Texas on business in 1846, and returned to Texas to live in the fall of 1848, after the commencement of this suit. From the time the defendant left Texas in 1845, the witness had had from six to ten thousand dollars in notes due the defendant in his hands, and the defendant at various times had had other property in Texas. At the date of the draft the plaintiff was a non-resident of this State and had so continued. The defendant objected to the testimony of the witness respecting his admissions and declarations, but the court overruled the objection.

The court instructed the jury that “the removal of the defendant from Texas before the Spring Term, 1845, of the District Court excused the plaintiff from his obligation to commence suit against him before the first or second term of the court after the dishonor of the bill;” that “if the bill was protested for non-payment, and notice thereof given to the defendant, he was still liable on this demand; that the verbal admissions of the defendant to the plaintiff and others were good evidence to prove a waiver of notice, and that a part payment of the bill will also amount to a waiver of notice;” that “if the plaintiff was not a citizen of this State when the bill was dishonored, nor the...