David Wallace & Co. v. Bro

• Decision Date: 16 December 1884
• Docket Number: Case No. 1745.
• Court: Texas Supreme Court
• Parties: DAVID WALLACE & CO. v. BOGEL & BRO.

62 Tex. 636

DAVID WALLACE & CO.

v.BOGEL & BRO.

Case No. 1745.

Supreme Court of Texas.

Dec. 16, 1884.

ERROR from Marion. Tried below before the Hon. B. F. Estes.

Wallace & Co. sued out an attachment against Crittenden & Kibbie, November 7, 1870, which was levied upon certain merchandise. Bogel & Bro. made claim, and presented their affidavit and claim bond. About sixty days thereafter Crittenden & Kibbie were adjudged bankrupts by the United States court at Tyler. This case was continued from term to term, and was finally tried in January, 1882, and judgment was rendered in favor of Bogel & Bro.

Sufficient facts will be found stated in the opinion for a full understanding of the case and the points decided.

Geo. T. Todd, for plaintiff in error, cited: Elliott v. Booth, 44 Tex., 180; Russell v. Chatham, 8 S. & M. (Miss.), 703; Gibson v. Gibson, 45 Miss., 703; Reed v. Bellington, 49 Miss., 223.

WATTS, J. COM. APP.

This record contains neither a statement of facts nor bill of exceptions showing the evidence adduced upon the trial. Defendants in error, by their answer, tendered two issues: one, that the merchandise had been taken from their possession by the United States marshal and turned over to the assignee of the bankrupt estate of Crittenden & Kibbie, by order of the bankrupt court; the other, that defendants in error were the true owners of the merchandise.

From the recitals in the judgment it appears that the court found against the defendants on the last issue, that is, the court found the merchandise subject to the attachment of plaintiffs in error. It is also recited in the judgment that the court found that defendants in error had been deprived of the possession of the merchandise by the marshal acting under the orders of the federal court.

In the absence of a statement of facts every legal intendment is in favor of the correctness of the judgment. It will be presumed in such case that the evidence was sufficient to authorize the finding. Cochran v. Kellum, 4 Tex., 120;James v. Fulcrod, 5 Tex., 512;Ward v. Townsend, 2 Tex., 581;Bond v. Mallow, 17 Tex., 636.

In the case of Dewees v. Hudgeons, 1 Tex., 192, it was in effect held that when there is no statement of facts in the record, nothing is assignable as error of law which could have been legally given in evidence at the trial; and, until the contrary be shown, the appellate court will presume that the evidence was sufficient to sustain the judgment.

It is also settled that nothing can be presumed to have been proved which could not legally have been proved under the pleadings. Luckett v. Townsend, 3 Tex., 119.

While recitals in the judgment of conclusions of fact deduced from the evidence will not supply the place of a statement of facts (Chrisman v. Miller, 15 Tex., 161), still it seems to us that the recital in this judgment, to the effect that the court found against defendants in error upon that issue wherein they claimed to be the owners of the merchandise, should be taken as concluding that issue.

That is, in view of this recital, the court will not presume that the evidence authorized a finding upon that issue in favor of defendants in error. No such presumption would be indulged against the record.

Then, under the issues tendered by defendants in error, it would seem that no other facts than those tending to establish the other issue which the court found in favor of defendants in error could have been legally established. For, as was said in Hall v. Jackson, 3 Tex., 305, and reiterated in Chrisman v. Miller, 15 Tex., 161,...