Frankenthal v. Lingo

• Decision Date: 24 April 1897
• Citation: 40 S.W. 815
• Parties: FRANKENTHAL et al. v. LINGO et al.
• Court: Texas Court of Appeals

40 S.W. 815

FRANKENTHAL et al. v. LINGO et al.

Court of Civil Appeals of Texas.

April 24, 1897.

Appeal from district court, Grayson county; D. A. Bliss, Judge.

Suit by A. Frankenthal & Bro. against Lingo, Waples & Co. and Lewin Bros. & Co. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Dudley & Moore, for appellants. Mosley & Smith, for appellees.

LIGHTFOOT, C. J.

This suit was brought by appellants, and their petition (omitting the formal portions) is substantially as follows: "That on or about December 12, 1889, plaintiffs, in their said firm name of A. Frankenthal & Bro., and the defendants in their respective firm names, to wit, Lingo, Waples & Co. and Lewin Bros. & Co., each commenced a suit at law for debt in the United States court in the Indian Territory for the First judicial division, held at the town of Muscogee, in the Creek Nation, against one W. Scott Cooke, who resides at Fred, in said judicial division, in said Indian Territory. That plaintiffs' demand for which they sued the said W. Scott Cooke was for about six hundred and seventy-seven ($677) dollars; that the defendants Lewin Bros. & Co.'s demand for which they sued the said W. Scott Cooke was for about eight hundred and seventy-one ($871) dollars, and the defendants Lingo, Waples & Co.'s demand for which they sued the said W. Scott Cooke was for about eleven hundred ($1,100) dollars. Plaintiffs further allege and show to the court that on or about December 12, 1889, the plaintiffs and each of the said defendants sued out and had issued by the clerk of the United States court at Muscogee, Indian Ter., in their respective suits against the said W. Scott Cooke, writs of attachments for the amount of their respective debts and costs, directed to the marshal of the Indian Territory, commanding him to attach and safely keep the property of the defendant in said suits, W. Scott Cooke, not exempt from execution, or so much thereof as would satisfy their respective demands. That under the instructions and directions of an attorney at law, one W. T. Hutchings, who represented the plaintiffs in each of said suits against the said W. Scott Cooke, and who was the agent of all of said plaintiffs, said writs of attachment were levied on the property of the said W. Scott Cooke, to wit, the storehouse and stock of goods therein situated in the town of Fred, Indian Ter., belonging to and as the property of said W. Scott Cooke, plaintiffs' said writs of attachment being levied on said property first, as writ No. 1; the defendants Lewin Bros. & Co.'s writ of attachment being levied second, as writ No. 2; and the defendants Lingo, Waples & Co.'s writ of attachment was levied third, as writ No. 3. That said writs of attachment were sued out and levied in good faith for the purpose of collecting honest debts, and with no intention of committing any wrong. That the property upon which said writs of attachment were levied was of value largely more than sufficient to satisfy the demands of the plaintiffs A. Frankenthal & Bro. That the value of said property so levied upon was about $6,000, and the levies were made successively on the same property at the instance and for the benefit of all the plaintiffs in said writs of attachment, to wit, the plaintiffs A. Frankenthal & Bro. and the defendants Lewin Bros. & Co. and Lingo, Waples & Co. That in the said suit of plaintiffs A. Frankenthal & Bro. against the said W. Scott Cooke the said defendant W. Scott Cooke reconvened for damages against plaintiffs for the full value of the property upon which the plaintiffs' writs of attachment and defendants' writs of attachment were levied successively. That on or about June 6, 1890, at a regular term of the United States court for the Indian Territory, before the Honorable James M. Shackelford, the said cause of A. Frankenthal & Bro., plaintiffs, against W. Scott Cooke, defendant, came on for trial, and, after hearing the evidence, argument of counsel, and receiving the instructions from the court, the jury impaneled in said cause returned into said court the following verdict: `A. Frankenthal & Bro. vs. W. Scott Cooke. We, the jury, find the issues in favor of the defendant, and assess his damages at $ ____, with interest, $5,854.63; attorney's fee, $150.00.' That afterwards at said term of court judgment was rendered upon said verdict in favor of said W. Scott Cooke and against plaintiffs A. Frankenthal & Bro. for said sum, less the amount of plaintiffs' demand against said W. Scott Cooke of $705.93; said judgment, as rendered, being for the sum of $5,148.71 and $150 attorney's fees, together with all costs of suit. That plaintiffs filed a motion for a new trial in said cause, which was overruled by the court, and defendant, W. Scott Cooke, entered a remittitur on said judgment of $2,359.72, and plaintiffs prosecuted a writ of error from said judgment to the supreme court of the United States, and on ____ day of ____, 1895, said judgment was by said supreme court of the United States in all things affirmed. That on August 2, 1895, plaintiffs paid off and discharged said judgment and costs by paying to the clerk of the United States court at Muscogee, Indian Ter., the sum of $3,836.89. That, in addition, plaintiffs paid the marshal's expenses in levying the said three writs of attachment and invoicing the goods, $89.05; the costs and fees in the supreme court of the United States, $150; paid for expenses of plaintiffs' bookkeeper, two trips to Muscogee attending to said case, $110; paid for attorney's fees, $500; and the...