Culbertson v. Jarman

• Decision Date: 31 January 1867
• Parties: JAMES CULBERTSON v. CABEEN & JARMAN.
• Court: Texas Supreme Court

29 Tex. 247

JAMES CULBERTSON

v.CABEEN & JARMAN.

Supreme Court of Texas.

January, 1867.

The affidavit is sufficiently formal and correct, except in that part which attempts to set forth the ground on which the attachment was sought, which is in these words; “Affiant further says, that said Culbertson is about to transfer or secrete his property,” etc., etc. In order to entitle a party to an attachment, it is necessary, as a condition precedent to his right, that he shall make affidavit to some one of the various causes prescribed by the statute as a sufficient ground. Pas. Dig. art. 142, note 259; 22 Tex. 208.

That a party is about to transfer his property for the purpose of defrauding his creditors is one ground; that he is about to secrete his property for the same fraudulent purpose, is another ground. Each one of these causes is a separate and distinct fact, independent of the other.

To transfer property is to place it in the hands of another; to secrete property is to hide it, to put it where the officer of the law will probably not be able to find it. These two acts can in no sense be considered as phases of the same general facts. To embrace these two causes in the same affidavit, makes the affidavit indefinite. Neither fact is sworn to. The affidavit is in the alternative. The affiant swears that one or the other fact exists, but does not say which.

The affidavit must be certain and positive, and not in the alternative.

As to notes not due when the attachment was sued out, the right of the party to sue and of the court to entertain the suit depends upon the attachment, for it is by the attachment alone that a debt not due can be sued; and the suit must abide the fate of the attachment. Pas. Dig. art. 154, note 265; 6 Tex. 196.

But if the notes mature pending the suit, the plaintiff may amend, subject to all defenses.

The remedy of attachment is a harsh one and must be strictly pursued, and if it be pursued wrongfully and without probable cause, the defendant may plead the actual damages sustained in reconvention.

And if, besides being untrue, the party suing out the attachment acted maliciously, and without probable cause for believing the ground of the attachment to be true, he is liable, in addition, for vindictive or exemplary damages, as a punishment upon him for his wrongful and oppressive use of the powers. Malice and the want of probable cause must both concur to support the charge of malicious prosecution. Neither is alone sufficient. If it were malicious and unfounded, but there was probable cause for suing out the attachment, nothing more than the actual damage sustained can be recovered. But malice may be implied from the want of probable cause; the implication subject to be repelled, however, by facts and circumstances indicating a fair and legitimate purpose, and honest pursuit of a claim believed to be just. 6 Tex. 407;14 Tex. 662.

Any unlawful act, done willfully and purposely to the injury of another, is, as against that person, malicious.

The questions of malice and of probable cause are questions for the jury, upon the evidence, facts, and circumstances of the whole case.

In order to establish an honest purpose, it must appear that such facts and circumstances, or so much of them as were sufficient to induce the belief, were communicated or known to the party before he commenced his proceeding.

ERROR from Austin. The case was tried before Hon. GEORGE W. SMITH, one of the district judges.

On the 23d December, 1858, James Culbertson executed his note, due at one day, to Cabeen & Jarman, for $1,098.14, and on the same day his other note, to the same parties, for $124.05, due at four months; and on the next day he executed his third note, to the same parties, for $2,036.68, due at six months. On the 18th April, 1859, the plaintiff filed his petition and affidavit for attachment, gave bond and sued out the process of attachment. There is a remark in the opinion to the effect that the suit had been commenced, and that the defendant had answered before the affidavit for attachment was filed. But this is an error of fact, whether it influenced the opinion in regard to the notes not due or not. By the 16th section of the attachment law, the plaintiff had the right to the attachment on a debt not due, but would have no judgment until the debt be due. Pas. Dig. art. 154. There was no allegation in the petition setting forth a ground of attachment, but it was averred that the first was due, and the others would become due in course of time. The affidavit, that the petition was true, required by the 143d section of the act to regulate proceedings in the district court, was made. Pas. Dig. art. 138, note 257.

After swearing succinctly to the debt, the affidavit proceeded: “That defendant is about to transfer or secrete his property, for the purpose of defrauding his creditors, and that thereby affiant and said Jarman, as partners, will probably lose their debt.”

At the return term defendant moved to quash upon various grounds assigned, answered by general denial, a plea in reconvention for wrongfully suing out the writ, and a special denial that he was about to transfer or secrete his property, as stated in plaintiff's affidavit.

The attachment was levied upon a storehouse and goods, a stable, and a fine horse, and goats, and about forty-five head of horses, mules, jacks, and jennets, and two negro slaves, in all to the value of about $7,000.

The court overruled the motion to quash, except as to the levy upon the stock of goods and the lot of forty-five head of horses, jacks, jennets, etc. The defendant had replevied the property.

At the trial the plaintiff proved his notes. In support of the plea in reconvention, the defendant proved that he had been engaged in the mercantile business in Hempstead, Austin county, for some time previous to the levy of the attachment; that his credit and standing up to that time had been good; that he was taking in cash on sales from $15 to $20 a day; that it was then the dull business season; that defendant was a saving, economical, and honest man; that at the time of the levy he was away from home, had gone to Lockhart, one hundred and twenty-five miles from Hempstead, on business; that, at the time of the levy and seizure of this property, Cabeen, one of the plaintiffs, was informed of defendant's absence, and that he would return in a few days; that he did return home on the night after the attachment was levied in the morning; that a short time before the levy defendant proposed to one of the plaintiffs to sell him the stock of goods he then had on hand, to the amount of $2,500 or $3,000, and that the same should be a credit upon the notes sued on; that said plaintiff declined, and said he was not uneasy about the amount defendant owed plaintiffs. That defendant applied the money taken in at the store to the payment of debts due for goods purchased. That defendant made no attempt to transfer or secrete any of his property, nor was there any proof of his intention to do so at or about the time of the levy. That the levy of the attachment annoyed and harassed defendant, and injured his credit very much; that he was forced to quit business, and his creditors all began immediately to press him. That defendant was honorable in his dealings, and those who knew him had entire confidence in him. That he was not an experienced or skillful merchant, but was deficient in business tact. That he had a “good deal of property” at the time the attachment was levied, and was then solvent; that he had already paid $100 attorney's fees for defending this attachment, and that it was reasonably worth $250 more to conduct the defense to a final termination.

One witness only had heard rumors of defendant's being in failing circumstances about the time of the levy. It also appeared that defendant had expressed a disposition to avoid or flinch from paying for some high-priced Hempstead town lots. There was no proof that rumors or any declarations of this character ever came to the hearing and knowledge of either of the plaintiffs. It further appeared that the persons to whom defendant made these declarations were his creditors.

The court charged the jury as to plaintiff's liability in damages to defendant for wrongfully suing out the attachment, and that counsel fees could not be allowed as damages, inasmuch as they were not the natural consequence of the levy. The jury found for plaintiffs the amount of their debt; and defendant assigns for error, among other things, “that the court erred in refusing to quash or abate the attachment, in toto, on defendant's motion.”

Hunt & Holland, for the plaintiff in error. 1. The affidavit was insufficient, being in the alternative, that defendant was about to transfer or secrete his property, for the purpose of defrauding his creditors. Hopkins v. Nichols, 22 Tex. 206.

Though this exception was not specially assigned in the motion to quash, we think it might well have been noticed, and ought to have been noticed, and held sufficient by the court below upon the fourth exception of defendant's motion, that “the proceedings of the plaintiffs and the officers of the court are all irregular and insufficient in law.”

This defect in the affidavit goes to the jurisdiction of the cause and the very foundation of the proceeding, and ought to be permitted to be taken advantage of upon general exception. Drake, Attach. §§ 83, 84, 85.

2. The court erred in charging the jury as to “probable cause,” and as to ““attorney's fees,” and as to “honest desire to secure the debt,” and “wanton disregard of defendant's rights,” and malice.

The charge of the court assumes that malice, in fact or intent, on the part of plaintiffs, to vex and harass defendant, must have been affirmatively shown, in order to make plaintiffs liable for exemplary...