Clegg v. Varnell

• Decision Date: 01 January 1857
• Citation: 18 Tex. 294
• Parties: EDWARD CLEGG AND OTHERS v. WILLIAM M. VARNELL AND ANOTHER.
• Court: Texas Supreme Court

18 Tex. 294

EDWARD CLEGG AND OTHERS

v.WILLIAM M. VARNELL AND ANOTHER.

Supreme Court of Texas.

1857.

The substance of the rules upon the subject of multifariousness appears to be that each case must be governed by its own circumstances, and whether it be multifarious or not, must be left in a great measure to the sound discretion of the court.

Where several executions against the husband, in favor of different plaintiffs, are levied upon property claimed by the wife, she may enjoin all the executions in the same suit.

Where several executions against the husband, in favor of different plaintiffs, are levied upon property claimed by the wife, the absence of some of the plaintiffs in execution from the state, involving by possibility the delays of citation by publication, is not a good ground for sustaining an exception on the ground of multifariousness; at all events, not after all the plaintiffs in execution have appeared and answered.

Where several executions against the husband, in favor of different plaintiffs, are levied upon property claimed by the wife, it would seem that a suit by the husband and wife, in behalf of the wife, to enjoin the sale of her property and in behalf of the husband to enjoin the executions, or some of them, absolutely, for objections to the judgments, is not bad for multifariousness.

Quere, whether a third person who claims property levied upon by execution against another, may enjoin the sale on the ground that the execution was not issued within the twelve months.

Where the husband and wife obtained an injunction against several executions levied on property claimed by the wife, and it was also alleged that one of the executions had not been issued within the twelve months, the court said that by cross-petition in the nature of a scire facias, or action of debt, the original judgment might be revived, and in the meantime, the defendant might controvert the issue as to the ownership of the property, and ascertain whether it was or not liable to execution on his judgment.

It is not multifarious in a suit by the husband and wife to enjoin the sale of property on execution against the husband, to claim the property as the separate property of the wife, and also as their homestead.

The questions presented in this cause have been discussed as if the rules in chancery upon the subject of multifariousness had binding force and authority in our code of procedure. It is scarcely necessary to say that they have no conclusive force, and will be recognized only when they may be deemed reasonable, and may harmonize with our system and the principles and rules of our pleadings and practice.

A prominent feature in our system of procedure is, that litigation between parties should be determined in a single suit. If this cannot be done without oppressive delays or expense, or such confusion as would occasion injustice, the suit should not be dismissed as to all the parties or cause of action, unless the plaintiff refuses to amend so as to avoid the difficulties, and retrench the multifariousness of his pleadings. The suit, if there be a good cause of action against any defendant, should be prosecuted against that defendant, the costs of the parties dismissed being paid.

Appeal from Calhoun. Tried below before the Hon. Fielding Jones.

Petition filed July 25th, 1854, as follows:

Your petitioners, Thomas Haynes, Edward Clegg, and Mariah J. Clegg, his wife, all citizens of said county of Calhoun, would most respectfully represent that in November, 1846, your petitioner, Edward Clegg, purchased of Henry Kitchen, now deceased, lots Nos. one, two, eleven and twelve in block No. six in the town of Port Lavaca, in the said county of Calhoun, and received from him bond for title upon payment of the purchase money; that after the death of the said Kitchen, his executor, David Murphy, commenced suit against your petitioner, Edward Clegg, in the district court of said county, and did, at the September term, 1849, obtain a judgment against him for the sum of seven hundred and forty-one 88-100 dollars for the purchase money due on said lots and the interest thereon; that, after the rendition of said judgment and before the March term, 1852, of said court, and whilst your petitioner, E. Clegg, was absent from the state, to wit: in the state of California, your petitioner, Mariah J. Clegg, paid and discharged said judgment, with the exception of $167 7-100, with money and property belonging to her in her separate and individual right; that at the March term of said court, 1852, it was decreed that said Murphy, as executor of said Kitchen, had a lien upon said lots for the residue of the unpaid purchase money, due and unpaid, and it was further decreed that said property be sold to pay the same. They would further show that said lots were under, and by virtue of said last-mentioned decree, sold by the sheriff of said county at public sale, on the 4th day of January, 1852, as the law required, and that one J. M. Stanton became the purchaser of the same and received from said sheriff a deed, a copy of which is herewith attached marked “A,” and prayed to be made a part of this petition. They would further show that your petitioner, E. Clegg, never did receive a title from the said Kitchen or the said Murphy, or from any other person for the said lots, and that he never was invested with a legal title to the same. Your petitioners would further show that the said J. M. Stanton did, on the 30th day of August, 1853, make, execute and deliver to your petitioner, Thomas Haynes, in trust for your petitioner, Mariah J. Clegg, a deed of conveyance for said lots, a copy of which is hereto attached, and prayed to be made a part of this petition. Your petitioners would further show that immediately after the purchase of said property from said Kitchen your petitioners, Edward and Mariah, entered into possession of the same, and that they have ever since held possession of the same, using and occupying the same as their homestead, and that they have no other homestead. They would further show that at the Spring term, 1852, one William M. Varnell obtained a judgment in the district court of said county against your petitioner, Edward Clegg, for the sum of two thousand dollars, with interest thereon from the 3d day of August, 1851; that at the March term of said district court, one Edward J. Feeny obtained a judgment against the petitioner Edward for the sum of seven hundred and seven 28-100 dollars; that the said Varnell and Feeny have caused executions to issue on said judgments against your petitioner Edward, and have had the same levied on said lots as the property of the said Edward, and caused the same to be advertised for sale by the sheriff of said county on the first Tuesday in August, A. D. 1854. And your petitioners further show that they are informed and believe and charge that the seizure of said lots under and by virtue of said executions is illegal and void for the following reasons:

1st. That the said lots are not now, and never were, the property of the defendant, Edward Clegg, but the property of your petitioner Thomas Haynes, in trust for your petitioner Mariah; that the said lots and buildings constitute and are the homestead of your petitioners Edward and Mariah. And further that the execution issued on said judgment, in favor of the said Varnell, is void; being the first execution issued on said judgment, and more than one year having expired between the rendition of said judgment and the issuance of said execution. [And your petitioner, Ed. Clegg, would further show that a few days after the filing of the petition of the aforesaid case of Varnell v. him, he fully paid and discharged the debt for which said judgment was rendered, by delivering to said Varnell a stock of cattle, which was received by him in full payment of said debt; and he would further show that said judgment rendered against him in favor of said Varnell was rendered by default; that he never had any legal notice of the pendency of said suit, nor had he been cited to answer the same, either by personal service or by any of the modes pointed out by law. He would further show that the aforesaid judgment in favor of Edward J. Feeny, was rendered on a judgment which the said Feeny obtained against him in the state of California, on the 10th day of July, 1850; that said judgment in California was rendered against him by default without personal service and that he had a good and valid defense to said cause of action, and that he was advised and charged that he could make the same defense to the action, brought on said judgment in this state, that he could have made to the original action, and when the said suit was commenced on said judgment in Calhoun county, he employed an attorney of said court, ______ Stewart, to make his defense; that he was subsequently informed, and believes it to be true, that, in consequence of the neglect of his attorney, judgment was taken against him at the return term of said court, and that he was thereby debarred of his defense; and that he did not learn his mistake, and that said cause was continued and the judgment taken at a subsequent term, until the issuance of the execution aforesaid.]

The premises considered, your petitioners pray that the said William M. Varnell and Edward J. Feeny may be made defendants hereto, and that they be cited to be and appear at the fall term, A. D. 1854, of the district court, to be held at the court-house in the said county of Calhoun, to answer the charges herein contained; and that they and ____ Howerton, sheriff of said county, their agents and attorneys, may be enjoined from selling the said lots of land, levied upon as aforesaid by virtue of the executions aforesaid; that upon a final hearing, said injunction be made perpetual, and that they may have judgment for their costs, etc.

[And your petitioner, Edward Clegg, prays that the said Varnell and...