Ellis v. Kerr

• Decision Date: 22 November 1893
• Citation: 23 S.W. 1050
• Parties: ELLIS v. KERR et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

23 S.W. 1050

ELLIS v. KERR et al.¹

Court of Civil Appeals of Texas.

November 22, 1893.

Appeal from district court, La Salle county; R. W. Hudson, Judge.

Action by M. F. Ellis against John A. Kerr and others to enjoin the collection of a judgment, and to offset a claim against it. From a judgment for defendants, plaintiff appeals. Reversed.

S. M. Ellis and James Raley, for appellant. Lane & Mayfield, for appellees.

NEILL, J.

This is an appeal from a decree of the district court of La Salle county dissolving a writ of injunction, and dismissing appellant's suit for want of equities in his bill. The appellant, in his petition for injunction, complains of J. A. Kerr, the surviving partner of the firm of L. O. Dargan & Co., and of his agent and attorney of record, E. R. Lane, and alleges, substantially, that on March 20, 1886, John A. Kerr and L. O. Dargan were partners under the firm name of L. O. Dargan & Co.; that during said month complainant sold said firm certain sheep then in Presidio and Pecos counties; that at the time of the sale he was indebted to one Ebeling in the sum of $3,700, evidenced by his promissory note to him, due July 1, 1889, which note was given for 1,131 sheep on complainant's ranch at the time the note was executed, in Pecos county; that it was provided in the note that, on the failure to pay it when due, the holder thereof should be authorized to take possession of the sheep, and sell them, after giving 10 days' notice of the time and place of sale, and, after deducting the expenses of the sale and the amount due on the note from the proceeds of sale, to pay the surplus to Ellis; that, as a part of the consideration due complainant for the sheep, Dargan & Co. assumed and agreed with him that they would pay Ebeling the note, and save Ellis harmless thereon; that Dargan & Co. failed to pay the note, or any part of it, to Ebeling, when due, and that complainant was compelled to pay Ebeling the principal and $50 due on said note; that on the 1st day of July, 1889, which was before the maturity of the note, Dargan died insolvent and intestate, and that Kerr, his surviving partner, was also, at the time of Dargan's death, insolvent, and has been so ever since, and is a nonresident of Texas; that Dargan's estate is insolvent, and that Rupert R. Claridge is its administrator; that in 1886 Dargan & Co. sued complainant in the district court of La Salle county for damages, upon the alleged ground that the flock of sheep sold them by him were 600 head less than Dargan & Co. claimed they bought; that in said suit judgment was rendered in the district court in complainant's favor, but that it was appealed to our supreme court, and by it reversed (16 S. W. Rep. 789) on the 26th day of May, 1891, and final judgment rendered in favor of A. L. Dargan & Co. against complainant for the sum of $1,610.54, and all costs, which judgment was certified to the district court of La Salle county for observance; that, at the time of the trial of said case in the district court of La Salle county, complainant's note to Ebeling was not due, and that L. O. Dargan & Co. were then solvent and responsible; that R. R. Claridge, as administrator of the estate of L. O. Dargan, and John A. Kerr, as surviving partner of said firm, and their agent and attorney of record, E. R. Lane, are now attempting to enforce the payment against complainant of said judgment of the supreme court, and costs, and refuse to allow him to offset said judgment with the $5,200 paid by complainant to Ebeling; that, owing to the insolvency of the estate of Dargan and of John A. Kerr, complainant is without remedy at law against Dargan's estate and Kerr. Complainant then prays that he be allowed to offset said judgment against him for the sum of $1,610.50 by the amount of $5,200 he paid Ebeling, and that Claridge, as administrator of the estate of L. O. Dargan, as well as the heirs and devisees of said estate, John A. Kerr, his attorneys and agents, and E. R. Lane, be restrained and enjoined from enforcing said judgment against him. He then prays for a writ of injunction against the defendants, and that upon final hearing it be made perpetual. Before the trial of the case, the complainant entered a discontinuance as to the defendant Kerr. Although the injunction was prayed for and relief asked against Rupert R. Claridge, as the administrator of Dargan's estate, the bill for the injunction was not filed against him, nor was citation asked against him, nor does it appear that he was ever cited as a defendant, nor did he answer in the case. The defendant Lane answered by demurring to the sufficiency of appellant's ...