Farmers' Nat. Bank v. Daggett

• Decision Date: 22 February 1928
• Docket Number: (No. 873-4143.)
• Citation: 2 S.W.2d 834
• Parties: FARMERS' NAT. BANK OF STEPHENVILLE et al. v. DAGGETT.
• Court: Texas Supreme Court

2 S.W.2d 834

FARMERS' NAT. BANK OF STEPHENVILLE et al. v. DAGGETT.

(No. 873-4143.)

Commission of Appeals of Texas, Section B.

February 22, 1928.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Mary H. Daggett against the Farmers' National Bank of Stephenville and another. From a judgment of the Court of Civil Appeals (259 S. W. 198), reversing a judgment for defendants, they bring error. Affirmed.

Robert L. Thompson, of Stephenville, for plaintiffs in error.

W. G. Eustis, of Henrietta, for defendant in error.

SHORT, P. J.

This is a suit by defendant in error, Mary H. Daggett, instituted in the district court of Clay county against Farmers' National Bank of Stephenville and Will Clay, both of Erath county, plaintiffs in error. Her petition is in two counts: The first count is an action in trespass to try title to lands situated in Clay county. The second count alleges that on or about July 1, 1921, said bank filed suit against her, George H. Daggett, and Elliott Daggett, and in said suit sued out a writ of attachment which was levied upon that part of the land described in the first count as situated in block No. 17 in the original town of Henrietta; that Elliott Daggett was dismissed from said suit and judgment was rendered therein in her favor, and against George H. Daggett for $790.50, and foreclosing the attachment lien as against her and George H. Daggett; that said county court did not have jurisdiction to foreclose as against her, there being no judgment against her; that on or about the 6th day of September, 1921, Will Clay obtained judgment in said county court against George H. Daggett for $675, foreclosing an attachment lien on all of said land in a suit to which she was not a party; that she was the owner of all the land set out in her petition; that George H. Daggett had no title thereto; and that the foreclosure of such writs of attachment cast a cloud upon her title to said property. She prayed that temporary writ of injunction issue restraining sale of said land under orders of sale pending suit and that on trial said injunction be made permanent. Temporary injunction was issued as prayed for.

Said bank excepted to the allegations against it contained in said second count for the reason that same showed that the judgment foreclosing the attachment lien against Mary H. Daggett in its favor was res adjudicata, and that she was thereby precluded from asserting the rights and interests claimed by her. This exception was by the court overruled.

Issue was joined and plaintiff in error bank, also by special answer, alleged that Mary H. Daggett was precluded from maintaining her cause of action against it by reason of its said suit and foreclosure in the county court, attaching as an exhibit the judgment therein rendered, which is as follows:

"In the County Court of Erath County, Texas.

"Farmers' National Bank of Stephenville v. Geo. H. Daggett et al. No. 1757.

"Be it remembered that on this the 22d day of October, 1921, there came on for trial in this court in regular term, time, the above styled and numbered cause, and the plaintiff Farmers' National Bank and the defendant appearing and having announced ready for trial, and the defendant Geo. H. Daggett, although having been duly and legally cited to appear herein in the way and manner required by law for service on nonresident defendants, came not, but wholly made default, and service not being obtained on the defendant Elliott Daggett, and the defendant Mary H. Daggett having filed an answer herein contesting her liability on the note sued on, and the said Farmers' National Bank and Mary H. Daggett both having announced ready for trial, thereupon came a good and lawful jury of six good and lawful men, who being duly impaneled and sworn to try said cause, and the court and jury having heard read the pleadings of the parties Farmers' National Bank and Mary H. Daggett, the evidence, and argument of attorneys, the court instructed the jury as follows:

"`Gentlemen of the Jury, you are instructed to find a verdict in favor of the plaintiff for the amount of its debt, principal, interest, and attorney's fees as against the defendant Geo. H. Daggett, and you will further find that said Farmers' National Bank, plaintiff, has an attachment lien on the property described in the return on the writ of attachment as against Geo. H. Daggett and Mary H. Daggett. You will further find a verdict in favor of the defendant Elliott Daggett. You will further find a verdict in favor of the defendant Mary H. Daggett on the note sued upon.

                                     "Wm. Arch Jones, Judge.'
                

"To which instruction of the court the jury, on said 22d day of October, 1921, returned into open court the following described verdict, viz.:

"`We, the jury, find a verdict in favor of the plaintiff for the amount of its debt, principal, interest, and attorney's fees, as against the defendant Geo. H. Daggett. We further find that the plaintiff Farmers' National Bank of Stephenville has a valid attachment lien on the property described in the return of the writ of attachment as against Geo. H. Daggett and Mary H. Daggett. We further find a verdict for the defendant Elliott Daggett, and further find a verdict in favor of the defendant Mary H. Daggett on the note sued on.

                                           "`C. H. Baber, Foreman.'
                

"Which verdict of the jury was received by the court on said day.

"It is therefore the order, judgment, and decree of the court that judgment is here rendered on the verdict of the jury, and in favor rendered notwithstanding said verdict as follows:

"It is ordered, adjudged, and decreed that the plaintiff Farmers' National Bank of Stephenville, a corporation, do have and recover of and from the defendant Geo. H. Daggett the sum of $790.50, with interest thereon from the 1st day of July, 1921, until fully paid and satisfied.

"It is further ordered, adjudged, and decreed that the following described property, viz. all of lots Nos. 1, 2, 3, and 4, and an undivided one-half interest in lots Nos. 13 and 14, and the south ten feet off of lot No. 15, all in block No. 17, original addition to the town of Henrietta, Clay county, state of Texas, are duly and legally seized under the writ of attachment which, with the sheriff levy and return thereon, constitutes a valid and subsisting attachment lien on all the property above described, and that said property is subject to the said attachment lien, as the property of the defendants Geo. H. Daggett and Mary H. Daggett; it being further decreed that plaintiff's said attachment lien on the above premises be and the same is hereby preserved and perpetuated, as against the defendants Mary H. Daggett and Geo. H. Daggett, and it is so ordered.

"It is further ordered and decreed by the court that the defendant Elliott Daggett be and he is hereby dismissed from this cause without prejudice.

"It is further ordered and decreed that the plaintiff take nothing against the defendant Mary H. Daggett on the note sued upon.

"It is further ordered that plaintiff recover its costs herein expended.

"And it is so ordered."

The case was tried before a jury and on a verdict finding that the land in controversy was the community property of George H. Daggett and his wife, Mary H. Daggett, and not her separate property as alleged by her, the trial court rendered judgment for plaintiffs in error, and the temporary injunction theretofore issued was dissolved.

Mary H. Daggett perfected her appeal to the Court of Civil Appeals, and the judgment was reversed, and the cause remanded on the holding that the trial court erred in permitting the president of the plaintiff in error bank to testify, over objection, to statements made to him by George H. Daggett prior to his death, relative to his ownership of the land in controversy, said statements being hearsay, which holding we approve. 259 S. W. 198.

The only other question material to a proper disposition of the application for the writ of error is thus stated in the application made by the Farmers' National Bank, one of the plaintiffs in error:

"Mary H. Daggett having filed an answer and made her appearance on the trial of the case of Farmers' National Bank v. Geo. H. Daggett et al., in the county court of Erath county, her appearance was for every purpose known to the law, and on her failure to plead her separate rights in the lots in controversy, on which the writ of attachment was levied and foreclosed, and her failure to challenge the jurisdiction of the county court to try an issue of title, said judgment of the county court of Erath county foreclosing the attachment lien against her is final, and she is estopped in law from attacking said judgment in a collateral and independent suit."

This question thus stated is presented in several of the assignments of error and in the propositions germane to those assignments, none of which is necessary to copy for a proper understanding and discussion of the question involved, which, briefly stated, is whether the judgment of the county court of Erath county is of that character and dignity as to preclude the defendant in error, Mary H. Daggett, from prosecuting this suit, the object of which is to establish the alleged fact that the property in controversy on the date the attachments were issued in the two suits in the county court was her separate property in which her husband had no interest.

It is shown by the record that Geo. H. Daggett, as well as the other defendants in the case wherein judgment was rendered in the county court of Erath county, were nonresidents, and that the jurisdiction of the county court over the defendants was acquired by virtue of the attachment proceedings wherein an affidavit was made in compliance with the statute to the effect that both Geo. H. Daggett and Mary H. Daggett were justly indebted to the plaintiff bank in a certain sum of money and that ...