Clark v. Wilcox

• Decision Date: 31 October 1868
• Citation: 31 Tex. 322
• Parties: EDWARD CLARK, GOVERNOR, FOR THE USE, ETC., v. JAMES WILCOX ET AL.
• Court: Texas Supreme Court

31 Tex. 322

EDWARD CLARK, GOVERNOR, FOR THE USE, ETC.,

v.JAMES WILCOX ET AL.

Supreme Court of Texas.

October, 1868.

The failure of the clerk of the district court to copy the return of a sheriff upon a summons, whereby the judgment was reversed and the defendant in error lost his debt, makes the clerk liable for the amount, and the substantial averment of the facts, and that the defendant had become insolvent, are a sufficient statement of the cause of action.

The return of the sheriff was in these words: “Came to hand the 5th of April, 1860; executed on the 7th of the same month by delivering in person to Andrew Herron a certified copy of the petition and a copy of this writ.”This was a sufficient compliance with the statute. Pas. Dig. art. 1433, note 545.

“The time and manner of service” does not mean a useless narrative of facts, but only that a copy of the process and petition were delivered to the defendant himself and when. Pas. Dig. arts. 1507, 5121, notes 593, 1122.

The return of the sheriff need not follow the very language of the statute, if it set forth the substantial facts necessary to a good service.

The return need not set forth that the person served was the defendant, if he be correctly named. Brown v. Robertson, 28 Tex. 555.

If the court has already substantially given an instruction asked, it is not error to refuse to repeat it. Pasch. Dig. art. 1464, note 562.

If in suing out an attachment the plaintiff was not actuated by malice towards the defendant, nor other motive than a desire to secure the payment of the debt sued upon, the rule of damages, if the attachment be dissolved, is the damages actually sustained. Pas. Dig. art. 3446, note 797; 19 Tex. 227;21 Tex. 22.

APPEAL from Guadalupe. The case was tried before Hon. ISAAC B. MCFARLAND, one of the district judges.

The facts are sufficiently set forth in the opinion of the court.

John Ireland, for appellant.

John P. White, for appellee.

HAMILTON, J.

This was an action for damages, brought by T. H. & G. B. Hollaman, in the name of the governor, against the appellee, Wilcox, and his sureties on his official bond, as clerk of the district court of Guadalupe county, for an alleged failure to properly discharge his duty in preparing a certain record for the supreme court.

The facts stated in the petition are briefly, but substantially, as follows: That the appellants, being indebted to the firm of Gruman & Co., in the sum of $500, in part payment of said debt they transferred to said firm a note on one Andrew Herron for the sum of $352.49; that said Gruman & Co. immediately commenced suit on the note in the district court for Guadalupe county against said Herron as principal and the said Hollamans as indorsers or assignors, and recovered judgment, the case being styled Samue?? E. Gruman & Co. v. T. H. & G. B. Hollaman, and numbered 1035 on the docket of said court; that execution was issued against the said Herron and plaintiffs below on the 2d of February, 1859; that said Herron filed his petition for, and obtained a writ of error and removed said case to, the supreme court, where, on the 31st day of October, 1859, the judgment was reversed and the cause remanded for further proceedings, upon the ground that the record did not disclose that service had been perfected on the defendants below. That at the fall term, 1860, said Gruman & Co. again obtained judgment against said Herron and plaintiffs below for the amount of said note; that execution issued on said judgment, when the said Herron proved entirely insolvent, and the sheriff was unable to collect said debt from him, and the said petitioners (plaintiffs below) were compelled to pay the same on the 10th of April, 1861, to the amount of $600; that said Herron was entirely solvent when the first named judgment was rendered, and that the same could and would have been collected of him had it not been reversed by the supreme court; that he, the said Herron, was solvent and providing for the payment of his debts up to about the time of the rendition of the last judgment; that there was personal service on the defendants below before and at the time of the rendition of said first judgment against said Herron and plaintiffs below, but that the appellee, who was the district clerk at the time, and who made out the transcript of the record when the cause was removed to the supreme court, failed to transcribe the returns of the sheriff on the writs in said cause, and the transcript sent up to the supreme court by said Wilcox did not show that service had been perfected on the defendants in said cause; that by reason of said failure of said Wilcox to copy into said transcript the sheriff's return on said writs, as aforesaid, petitioners have lost their debt on said Herron, etc. The official bond, oath of office, etc., are appended to the petition, certified to by the county clerk.

To this petition the defendants below interposed general and special exceptions, which need not now be noticed. The plaintiffs sued out an attachment against two of the defendants, and caused a levy to be made upon property, real and personal, which upon motion was quashed; and then sued out a second attachment, which was levied upon the same property. Whereupon the defendants filed a plea in reconvention for $1,000 damages for the wrongful, vexatious, and malicious suing out of said attachment.

At the spring term, 1866, there were a trial and judgment for the defendants below for the sum of $50 damages and costs of suit. A motion for new trial being overruled, notice of appeal was given, and an agreement entered into by the attorneys of the parties respectively, which was approved by the presiding judge, that the transcript of the record should consist of certain papers in the cause, and that the questions for the determination of this court should be, “Whether the petition discloses a good cause of action against defendants, and whether the charge of the court to the jury was correct, and whether the court did right in refusing the charges asked by plaintiffs.”

The several special exceptions to the sufficiency of the petition seem to rest on the following grounds:

1. The amount claimed by plaintiffs, and which they claim to have been compelled to pay, is not the amount which they show themselves to have been indebted to Gruman & Co.

2. The petition discloses the fact that, if anything has been lost, it is only the amount of the note which Herron owed the plaintiffs.

3. The petition does not disclose the fact that the plaintiffs have ever made any attempt to enforce the collection of their debt against Herron.

4. Is to the same effect as the third.

5. That it is not shown by the petition that any effort was ever made to enforce the collection of the judgment in favor of Gruman & Co., out of the principal debtor, Herron.

6. That the petition shows that, if the plaintiffs have sustained any loss, it was caused by their laches and carelessness.

As to the first and second exceptions, it is sufficient to observe that it is not perceived how the amount of the original debt of the plaintiffs below to Gruman & Co. has anything to do with their right to recover damages from the defendants, or that any discrepancy in amount between said debt and the damages claimed could possibly affect the issue between the parties litigant. We understand from the petition that the plaintiffs only claim the damages which they allege they sustained by reason of the compulsory payment by them of the judgment rendered in favor of Gruman & Co. against Herron and themselves jointly. Their original indebtedness to Gruman & Co., and which is stated in the petition by way of inducement to the transfer of the note on Herron, was not necessary to have been stated at all, and is to be treated as mere surplusage.

Neither the consideration which moved the plaintiffs to transfer the note on Herron nor the amount of their in debtedness then or since to Gruman & Co. can have any bearing upon the case presented in the petition.

The third, fourth, and fifth exceptions are not tenable. A plaintiff is bound in his petition to state facts which, if true, will entitle him to a recovery, but he is not bound to disclose the testimony by which he proposes to establish the facts alleged. The fact is clearly stated in the petition that, after the rendition of the last judgment in favor of Gruman & Co. against Herron and plaintiffs, “execution again issued on said last judgment against said Herron and petitioners, and said Herron now [then] proving entirely insolvent, and the sheriff having been unable to collect said debt from said Herron, petitioners were forced to pay the same,” etc.

This averment is broad and explicit, and under it any fact tending to prove its truth would be admissible. An execution issued upon the judgment and returned nulla bona as to Herron, or other facts tending to prove the averment, would be received. Whether...