Douglass, Brown & Co. v. Neil & Co.

• Decision Date: 01 January 1872
• Citation: Douglass, Brown & Co. v. Neil & Co., 37 Tex. 529 (Tex. 1872)
• Court: Texas Supreme Court
• Parties: DOUGLASS, BROWN & CO. v. NEIL & CO.

37 Tex. 529

DOUGLASS, BROWN & CO.

v.NEIL & CO.

Supreme Court of Texas.

1872.

1.Precisely how far garnishees may question a judgment rendered against their creditors, when the latter do not complain of the judgment, seems not to be settled.They may see that the judgment has been correctly rendered against their creditors, and that, when paid by themselves, it will protect them against their creditors; and they may see that their liability under the garnishment is correctly ascertained, and that judgment against them be rendered in accordance with law; but they cannot be allowed to defeat the plaintiff's action on grounds which the defendant did not see fit to assume, or which he chose to waive.

2.Distinctions between legal and equitable rights being unknown in the judicial system of this State, if a party has rights cognizable either at law or in equity, he has a case within the jurisdiction of our courts.

3.In this State an ordinary suit for debt is maintainable by one firm against another, irrespective of the fact that the same person is a member of both firms, and thus appears as both plaintiff and defendant.

4.One partnership firm sued another by attachment, for debt, alleging that the defendants had abandoned the country, etc.One member of the plaintiff firm was also a member of the defendant firm, and he, in the name of the defendant firm, retained attorneys to defend the suit, who appeared and answered for the defendants; but plaintiffs recovered against defendants, and the latter did not appeal.There was no service of the attachment by publication, but it was levied on property of the defendants, and garnishment was served on appellants, who insist that the court below never acquired jurisdiction as against their creditors, the defendants.Held, that by the defendants' appearance by attorney, and by the levy of the attachment on their property, the court below acquired jurisdiction both of their persons and their property.

5.In a suit commenced by attachment, the defendants took no exceptions to the attachment proceedings, but pleaded to the merits, and judgment was rendered against them; after which garnishees traversed, by pleas, the affidavit for the attachment.Held, that exceptions were properly sustained to the pleas.It was not competent for garnishees thus to make for the defendants a defense which the latter did not make for themselves, and which, after judgment, would not have been available even to the defendants themselves.

6.A first continuance being sought for want of testimony, the affidavit disclosed the facts which the testimony was expected to prove.Held, that the court below had the right to look to the pleadings, and to consider the relevancy and materiality of the proposed evidence, and if it was irrelevant or immaterial to the issues, it was not error to refuse the continuance.

APPEAL from Anderson.Tried below before the Hon. John G. Scott.

Appellees were plaintiffs in the court below.P. McDannell, M. McCarty, and James Neil constituted their firm of James Neil & Co. McDannell made the affidavit, and instituted the attachment proceedings by which the suit was commenced against Quinn, Murphy & Neil, the defendants.Nothing in the pleadings of the plaintiffs or the defendants showed that the defendant Neil was the same person as one of the plaintiffs; but this fact was alleged by the appellants, who had been cited as garnishees, and who, after judgment in favor of plaintiffs against defendants, pleaded in abatement of the plaintiffs' suit that Neil was a member of both the firms.Plaintiffs excepted to this plea for insufficiency, and their exceptions were sustained; and this ruling is assigned for error.

McDannell's affidavit for the attachment alleged that the defendants had abandoned the country.No issue on this allegation was made by the defendants; but the appellants traversed it by a plea, to which exceptions were also taken and sustained, and this is also relied on as error.

Like action was had on other pleas of the appellants, by which they sought to invalidate the attachment proceedings, and to impeach the judgment already recovered against the defendants by the plaintiffs; but, inasmuch as the argument of counsel will disclose the nature of these pleadings, it is not necessary here to state it with particularity.

Attorneys appeared in the court below for Quinn, Murphy & Neil, the defendants, and filed for them a general demurrer and a general denial.The appellants, in their answer, alleged that this appearance for the defendants was made at the instance of James Neil alone, and that the firm of Quinn, Murphy & Neil had previously been dissolved; wherefore they alleged that the appearance for Quinn and Murphy was unauthorized.

The opinion of the court discloses such other facts as are material to the case.

John H. Reagan, for the appellants.

I.The first and second of the errors assigned by appellants are as follows:

“ First.The court erred in taking and retaining jurisdiction in the original case of James Neil & Co. against Quinn, Murphy & Neil, and in rendering the judgment contained in the record of this case against them for fifteen thousand four hundred and eighty-nine dollars and thirty cents, on the 3d of September, 1872.

Second.The court erred in taking and retaining jurisdiction in the matter of the garnishment of appellants, sued out by appellees in said case, and in rendering the several judgments contained in the record against them.”

These two alleged errors will be examined together.

The question as to the jurisdiction of the court is raised by the plea in abatement filed by appellants, and by the pleas of appellants, to which the attention of this court is respectfully called.

These pleas were put in issue by appellees by their general and special exceptions, and by their general exception; and these exceptions were sustained by the court, which rulings were excepted to by appellants.

These pleadings, rulings, and exceptions present for the determination of this court the question of jurisdiction, and appellees rely mainly upon the want of jurisdiction in the court below for the reversal of the judgment in this case, and expect to show that the judgment ought to be reversed and the cause dismissed by this court.

This court would doubtless have looked into the question of jurisdiction on mere suggestion, and in the absence of pleas, rulings, and exceptions, fully raising the question, as is done in this case.

1st.The court will look into the question of jurisdiction at any stage of the proceedings.(SeeRhode Island v. Massachusetts, 12 Peters, 718;Grignon's Lessee v. Astor etal., 2HowardU. S., 338.)

2d.A judgment cannot be rendered against a garnishee on a void judgment.(Ward v. Haggerty, 25 Texas, 144.)

3d.Where the proceedings show that there is no legal service on the defendants, the judgment is void.(Edrington v. Allsbrooks, 21 Texas, 186.)And the same case, that judgment against a garnishee is dependent on the judgment against the defendant or original debtor; that being void, the other falls with it.

II.In appellants' plea in abatement, and their first plea in bar, in the answer of John R. Boyle, it is alleged that the judgment rendered for appellees against appellants in this case is fraudulent, null, and void, and furnishes no foundation on which to render judgment against appellants, because James Neil, of the firm of James Neil & Co., plaintiffs in this suit, is the same person who is sued as a defendant in this suit, and as a member of the firm of Quinn, Murphy & Neil, by the name of Peter H. Quinn, Francis Murphy, and James Neil; and that he cannot be both plaintiff and defendant in the same suit, and could not lawfully obtain a judgment against himself for his own benefit, nor for a firm of which he is a member against a firm of which he is a member, in one and the same suit; and that he was and is legally interested on both sides of the case; wherefore the court has no jurisdiction of the case.

This plea is to be taken as true for the purpose of determining the validity of the exceptions to it.

Where one person is a partner of two firms, he cannot sue either of the firms of which he is a member.(Chitty's Pleadings, 40, 41, and authorities there cited; Story's Equity Jurisprudence, Section 679; Parsons' Mercantile Law, 183; Parsons' Law of Business Men, 158.)It is not denied that in a proper mode of procedure, as in the nature of a bill in equity, the mutual rights and liabilities of two firms, having one or more of the same persons in each, might be litigated; but none of the facts or circumstances are averred by appellees in this case which would distinguish this from an ordinary action at law.And while the jurisdiction of our courts is without regard to any distinction between law and equity, still, by numerous decisions, it is held that where what would be a legal right, in a country where the distinctions between proceeding at law and in equity are preserved, is to be asserted, it is to be done by such averments, omitting common law forms and technicalities, as would be employed in a court of law; and equitable rights by such averments as show the equitable qualities of his title.This case stands as a mere action at law, and, it is submitted, is clearly within the principle above laid down.

III.The fifth and sixth errors assigned are as to the ruling of the court sustaining the exceptions of appellees to the plea in abatement, filed by appellants, and in sustaining the exception of appellees to the pleas of appellants.

In the third one of those pleas it is shown that appellees, for the purpose of fraudulently giving the court jurisdiction of the case, averred in their original petition that the defendants, “Peter H. Quinn, Francis Murphy, and James Neil, late temporary residents of said Anderson county, Texas, * * * are now,”(that is, at the date of the filing of their said original...