Elser v. Graber

• Decision Date: 29 November 1887
• Citation: 6 S.W. 560
• Parties: ELSER v. GRABER.
• Court: Texas Supreme Court

6 S.W. 560

ELSER v. GRABER.

Supreme Court of Texas.

November 29, 1887.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

M. B. Templeton, for appellant. Shepard & Miller and Lancaster & Maxwell, for appellee.

GAINES, J.

Two writs of attachment were issued from the district court of Ellis county, and levied upon a stock of drugs, valued by the sheriff at $2,993, as the property of one F. M. Danelly; one in favor of appellant, which was first in point of time, and the other in favor of C. A. Arnold. Appellee claimed the property, and filled a claimant's oath and bond. The bond was made payable jointly and severally to the plaintiffs in the two writs. A trial of the right of property was had in the court below, which resulted in a judgment for claimant, and it is from that judgment that Elser now appeals, appellant excepted to the bond because it was made payable to plaintiffs in both attachments, and, his exceptions having been overruled, he assigns the ruling as error. There is no express provision in our statute to meet the case of a claimant of property levied on by virtue of two or more writs against another party; and the proper practice cannot be deemed settled in our courts. It is intimated in Blankenship-Blake Co. v. Thurman, 5 S. W. Rep. 836, (present term,) that the correct proceeding in such case is to make one claim and one bond, payable to all the plaintiffs in the writs and to settle the rights of all the parties in one suit. But the decision of the question was not called for by the record in that case, and it was not determined. We are of opinion, however, that the course there suggested is the proper practice. The statute being silent upon the point, we should consider that the legislature intended that course to be pursued which is least oppressive to the parties, and which conduces most to a speedy determination of the issues involved. Viewing the matter from this stand-point, we think the question admits of a ready solution. In providing the mode of the trial the law should respect the rights and consider the situation of all parties. We see no injustice in requiring each plaintiff in the writs to make his contest in the same suit. As a general rule their cases would be the same, and to be determined by the same issues, and, as matter of fact, they might be expected to make common cause. In exceptional instances, it is true, the rights of one creditor as against the claimant may be superior to another, (without reference to the question of priority,) and then, as between them and the claimant, the issues would be different. Such a case is rare. Also creditors, whose rights are the same, may differ as to the issues to be made. But in each of those cases each would be free, under our system of jurisprudence, to make his own contest upon his own grounds. A suit with three and even more parties, each claiming as against the others, and involving issues between some in which others are not interested, is not unusual in our practice. Therefore we cannot see that any injustice will result to the creditors from the rule for which we contend. On the other hand, we think the contrary practice calculated, in many instances, to act oppressly against the claimant. He would be required to give successive bonds and contest his rights with as many claimants. It sometimes happens that two or more writs are levied upon the same goods. Should he give bond in each case, and gain nine successive suits, he must still contest the tenth, unless the last creditor yield; and in the end he would find his property consumed in attorneys' fees, and other expenses of the litigation. We cannot believe that the legislature intended to make a law that would lead to such manifest injustice. The law was made for the benefit of claimants, and for the purpose of securing a speedy trial of the right of property claimed by one when taken by virtue of a writ against another. We are required to construe the Revised Statute, though in derogation of the common law, "liberally, * * * with a view to effect their object and to promote justice." Rev. St. final tit. § 3, p. 718. The construction contended for by appellant would, in many instances, deny the remedy to those for whose benefit it was given, and cannot therefore be upheld. Besides, it is not in accordance with our judicial system, which abhors a multiplicity of suits, and always strives to bring before the court all parties in interest, however numerous, and however diverse their claims, in order to have their rights settled in one action.

We have been cited to the case of Green v. Banks, 24 Tex. 508, in support of the proposition that the bond in question was insufficient. The same point was made in that case upon a similar bond, but the court held that the appellant there was not in a position to complain of the ruling of the court in sustaining the bond, and therefore expressly declined to determine the question. The appellant in that action moved the court to consolidate...