Dixon v. Zadek
| Decision Date | 05 June 1883 |
| Docket Number | Case No. 4231. |
| Court | Texas Supreme Court |
| Parties | A. J. DIXON v. A. ZADEK ET AL. |
OPINION TEXT STARTS HERE
APPEAL from Navarro. Tried below before the Hon. D. M. Prendergast.
A. J. Dixon recovered a judgment against Joseph Peyton as principal, and Adolph Zadek and Isaac Baum as sureties, for $142.42 and $92 costs. Execution issued and levied upon property of A. Zadek, who, together with Baum, sued out a writ of injunction restraining sale of goods under execution. The injunction was dissolved, and a judgment rendered against Zadek and Baum and their sureties for the sum of $142.42, principal, with interest and $99, upon which execution again issued. I. Baum paid the entire execution and caused an execution for one-half the amount paid by him to issue against A. Zadek, his co-surety, to wit, for the sum of $186.20. The execution was levied upon certain articles as the property of A. Zadek. Mrs. Bertha Caspar, sister of Zadek, filed a claim bond and affidavit alleging the goods levied upon were the property of A. Zadek & Co.; that she was the only partner furnishing goods and credit to said firm, and that the articles levied on were needed by the firm to carry on the business and to pay its debts.
Plaintiffs demurred to claim, because it showed no grounds of claim to property, or to exempt it from execution.
The court sustained demurrer and dismissed the claim, but refused to give any judgment against claimants and their sureties on claim bond. Plaintiffs then moved to amend the judgment, and for judgment against S. A. Pace and A. Fox, claimant's sureties on her bond, asking judgment to be reformed, which was refused; plaintiffs excepted, gave notice of appeal, and assigned following errors:
1. The court having sustained plaintiff's demurrer to claimants' affidavit, erred in not rendering judgment for plaintiff against said claimants and their sureties for the value of the property claimed, with legal interest thereon from the date of said bond.
2. The claimants having failed to establish their right to the property claimed, the court erred in overruling plaintiff's motion to amend and correct the judgment of the court, and refusing to enter judgment for plaintiffs against A. Zadek & Co. and their sureties, S. A. Pace and A. Fox, as prayed for in their motion.
3. The court erred in refusing to enter the form of judgment submitted by plaintiffs, with motion to reform and correct judgment entered by the court.
Simpkins & Simpkins, for appellant.
R. C. Beale, for appellees.
The demurrer of the plaintiff to the sufficiency of the claimants' affidavit of claim of the property levied on, and his motion to dismiss the cause for its alleged insufficiency, was not directed to formal defects in the affidavit, but it involved the substantial elements essential to constitute a valid and sufficient basis for the support of claimants' cause of action. The demurrer being sustained, the defendants did not offer to either amend by substituting an additional affidavit, or by otherwise altering the grounds on which they had rested their right to claim the property as being not subject to the plaintiff's levy; and, consequently, the judgment against the defendants on the demurrer became as conclusive a determination of the merits of the cause, and of all such issues as might have been litigated between the parties in that action, as though the cause had been determined under formal issues, the hearing of evidence, and a judgment rendered thereon. See Graham v. Vining, 1 Tex., 669;44 Tex., 390;12 Tex., 60;27 Tex., 565; Hale v. McComas, at this term. Such a judgment, thus rendered on a successful demurrer, is res adjudicata, and may be pleaded as such in another action involving the same cause of action between the same parties or their privies. Wells' Res Adjudicata, sec. 446; Gray v. Gray, 34 Ga., 502; Gould v. R. R., 91 U. S., 533,...
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Jackson v. Finlay
...Scherff v. Railway Co., 81 Tex. 472, 17 S. W. 39; Bomar v. Parker, 68 Tex. 435, 4 S. W. 599; Parker v. Spencer, 61 Tex. 155; Dixon v. Zadek, 59 Tex. 529; Girardin v. Dean, 49 Tex. 243. The same rule would apply where special exceptions are sustained which reach and determine the cause of ac......
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St Louis Type Foundry v. Taylor
...that the abandonment by the claimant of its claim to the property will not authorize a judgment on the bond. In the case of Dixon v. Zadek, 59 Tex. 529, a demurrer was filed by the plaintiff, testing the sufficiency of the claimant's affidavit of claim to the property levied upon. The demur......
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Bomar v. Parker
...of authority. Wells, Res Adj. § 446 et seq.; Bigelow, Estop. 33, 34; Freem. Judgm. § 267, — and cases cited by these authors; Dixon v. Zadek, 59 Tex. 529; Gould v. Railroad, 91 U. S. 533. See, also, the following more recent cases: Felt v. Turnure, 48 Iowa, 397; State v. Krug, 94 Ind. 366; ......
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Robicheaux v. Gulf Production Co.
...sustaining the exceptions became and was res adjudicata as to said question. This is the well-settled holding of our courts. In Dixon v. Zadek, 59 Tex. 529, 531, it is "The demurrer being sustained, the defendants did not offer to either amend by substituting an additional affidavit, or by ......