Friedlander v. Ehrenworth
| Decision Date | 19 January 1883 |
| Docket Number | Case No. 812. |
| Court | Texas Supreme Court |
| Parties | H. FRIEDLANDER v. H. M. EHRENWORTH. |
APPEAL from Colorado. Tried below before the Hon. Everett Lewis.
Ehrenworth brought this suit against Friedlander and others on the 1st day of February, 1876. He sued as one of the sureties on the bond of Dora Morris, administratrix of Carl Morris, deceased, who was also a defendant in this case. The object of the suit was to reach in the hands of Friedlander certain articles of merchandise formerly belonging to the estate of Morris, and which it was alleged had been fraudulently and collusively sold and delivered by the administratrix to appellant, her brother. It was charged that appellant had paid nothing for the same, was insolvent and about to remove the goods from the county; that Morris' estate was largely indebted and insolvent; that the administratrix had failed to pay to the creditors the pro rata ordered, and that they had sued appellee and the other sureties on her bond. He obtained an injunction restraining appellant from removing the goods from the county, also had a receiver appointed, who took charge of the goods, etc.
Appellant in his answer denied all the material allegations in the petition; denied that there was any collusion or fraud in the sale of the goods to him by the administratrix; averred that he had purchased the same in good faith and paid more than full value, reconvened for damages for wrongful suing out of the injunction, etc. He claimed exemplary damages for a malicious resort to the process of the court, and moved to dissolve the injunction, etc. This motion was heard in chambers and refused. The court then ordered the receiver to sell the goods and deposit the proceeds subject to the order of the court, which was done. Appellant then by amendment reconvened for actual damages for an alleged wrongful resort to the injunction, etc., and among other items claimed the value of the goods, stating the amount.
September 7, 1876, a trial was had which resulted in a verdict and judgment for appellant for one dollar and costs of suit, from which this appeal was taken.
The material errors assigned were:
1st. The court erred in overruling appellant's motion to dissolve the injunction.
2d. The court erred in refusing to give the charge asked by appellant.
3d. That verdict was against the evidence, and the court erred in overruling the motion for a new trial.
Foard & Thompson and Geo. McCormick, for appellant.
I. When the answer denies all the material allegations of the petition, under oath, the injunction should be dissolved.
Herron v. De Bard, 20 Tex., 602; Fulgham v. Chevallier, 10 Tex., 518;Lively v. Bristow, 12 Tex., 60;Couch v. Turnpike Co., 4 Johns. Ch., 26??
II. The charge of the court was contrary to the law of the case, erroneous, and misled the jury, and the court refused to give the charges asked by the defendant. In the fifth paragraph of the charge of the court is this instruction: “The jury are instructed that they will not take into consideration the proceeds of the goods seized and sold, the same being subject to the order of the court after finding and verdict of the jury, as hereinbefore instructed.” We contend that this charge misled the jury and caused this most astonishing verdict.
III. The court erred in refusing to give to the jury this instruction asked by the appellant: “The jury are further instructed that, in assessing the value of the goods seized by the sheriff and taken from appellant, they are not confined to the value placed thereon by the sheriff in his return upon the writ of injunction, but may judge of their value from all the evidence before them.” Cravens v. Wilson, 35 Tex., 52;Wallace v. Finberg, 46 Tex., 35;Harris v. Finberg, 46 Tex., 79.
IV. The verdict of the jury was contrary to the law and the evidence, and the verdict of the jury was inconsistent with the charge as given by the court and the facts as developed upon the trial.
L. J. Logue and French Simpson, for appellee.
I. The ground of practice of dissolving an injunction upon a denial by the answer of the material facts is, that the court gives entire credit to the answer, upon the common rule in equity that it is to prevail, if responsive to the charges in the bill, until it is overcome by the testimony of two witnesses, or one and other strong corroborating circumstances. Burnley v. Cook, 13 Tex., 590;Clow v. Merritt, 15 Tex., 137.
II. Appellant's first proposition is: Appellee objects to the above proposition. First. Appellant having neglected to except to the charge at the proper time, or to ask an additional charge of the court on the point, cannot now complain. Converse & Co. v. McKee, 14 Tex., 30;Thatcher v. Mills, 14 Tex., 13.
III. This suit being in the nature of a bill in equity, and appellee in his petition having nowhere claimed the goods nor prayed that he have possession of them, appellee's prayer being that a receiver be appointed by the court to take charge of the goods and hold or sell them for the benefit of the creditors of Carl Morris' estate, and the goods and proceeds of the same being at the date of the trial in the hands of the receiver or the court, awaiting the verdict of the jury and judgment of the court as to their disposition--the goods never having been in appellee's possession,--we contend that the charge given by the court, complained of above, was not error, but eminently right and proper. Moseby v. Burrows, 52 Tex., 403;Kountz v. Northern Bank, 16 Wall., 202;Booth v. Clark, 17 How., 331;Davis v. Gray, 16 Wall., 217.
IV. The goods or the value thereof being in the possession of the receiver in custodia legis, appellee had no control of the same, and is not responsible for their disposition, safe keeping or value. Shulto v. Hoffman, 18 Tex., 678; Booth v. Clark, 17 How., 321;Davis v. Gray, 16 Wall., 217, 218;Kountz v. Northern Bank, 16 Wall., 202.
V. The goods being in custodia legis, the only action appellant had against appellee in this case was for damages for any injury that he may have sustained by the wrongful suing out of the writ of injunction against him by appellee. This the jury found in their verdict, after hearing the abundant testimony before the court, to be one dollar. Appellant's plea was for damages, and the verdict of the jury was: etc. Hamilton v. Rice, 15 Tex., 384, and authorities cited.
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...matter within the sound discretion of the court to dissolve the injunction or not, as the equities of the case may require. Friedlander v. Ehrenworth, 58 Tex. 350; Hart v. Mills, 38 Tex. 517, and authorities supra. The answer in this case seriatim and specifically denies the equities set up......
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