Frost v. Smith

• Citation: 207 S.W. 392
• Decision Date: 06 November 1918
• Docket Number: (No. 5954.)
• Parties: FROST v. SMITH et al.
• Court: Court of Appeals of Texas

207 S.W. 392

FROST v. SMITH et al.

(No. 5954.)

Court of Civil Appeals of Texas. Austin.

November 6, 1918.

Rehearing Denied January 2, 1919.

Appeal from District Court, McLennan County; Geo. N. Denton, Judge.

Action by W. H. Smith and others against C. E. Frost. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Marshall Surratt, of Waco, for appellant.

R. H. Kingsbury, Nat Harris, Boggess & Naman, F. M. Fitzpatrick, W. L. Eason, and W. B. Carrington, all of Waco, for appellees.

KEY, C. J.

W. H. Smith, L. Fred and Sidney Herz, doing business under the name of Herz Bros., the Goldstein-Migel Company, a corporation, Sanger Bros., a firm composed of several partners, Texas Power & Light Company, and Alex Fitzpatrick, severally caused writs of attachment to be levied upon a certain automobile found by the sheriff in a certain garage in the city of Waco, Tex. In each of the writs referred to, Clayton, Gordon, and Hugh Boggs, alleged to compose the firm of Boggs Bros., were defendants, and the property referred to was levied upon as their property. Thereafter, C. E. Frost made and delivered to the sheriff who levied such writs a claimant's affidavit and bond, as prescribed by statute, in which he alleged that he was the owner of the automobile, and claimed the same in good faith. The statutory bond which accompanied the claimant's affidavit also recited the fact of the issuance and levy of the writs referred to.

The persons heretofore referred to as having caused their writs to be levied upon the property in controversy filed their several written petitions against C. E. Frost, styling themselves "plaintiff" and Frost "defendant," alleging the issuance and levy of their several writs; that C. E. Frost had filed a claimant's affidavit and bond; that he was not the owner of the automobile referred to at the time it was seized under such writs, nor at any other time; and that the same belonged to the firm of Boggs Bros., and was subject to seizure and sale for the payment of their claims against Boggs Bros. Two of them, L. Fred and Alex Fitzpatrick, filed their petitions on the 14th day of April, 1917. Some of the other petitions were filed two, and some three, days later.

On April 16, 1917, C. E. Frost, as defendant, filed an answer, which upon its face purports to be a reply to the petitions filed by each of the defendants; and in which, among other things, and in addition to a general denial, he alleged that he was the owner and in possession of the property levied upon at the time of such levies, and that it was not subject to their execution or attachment for the payment of any debts due to either of the plaintiffs by the defendants in the respective writs.

The trial court ruled that the burden of proof was upon Frost upon the issue of title to the automobile; and thereupon Frost made an admission of record in the language of Rule 31:

"That the plaintiffs and each of them had a good cause of action as set forth in their petitions except so far as it may be defeated in whole or in part by the facts of the answer constituting a good defense."

After that admission was made, the court ruled that the defendant Frost was entitled to open and conclude in adducing evidence and in argument. Considerable time was then consumed in passing upon and receiving testimony, after which the court instructed the jury to return a verdict for the plaintiffs against the defendant Frost and the surety on his bond, for specified sums; which verdict was returned, and judgment accordingly entered. Defendant Frost has prosecuted this appeal.

We sustain the assignments which complain of the action of the trial court in peremptorily instructing a verdict for the plaintiffs, and most of the assignments which complain because of the exclusion of certain testimony offered by the defendant.

It seems that the trial judge finally reached the conclusion that, by the admission made by appellant in conformity with Rule 31, the question of title to the property levied upon was conceded to be in the Boggs Bros., and not in the defendant Frost, at the time the plaintiffs' writs were levied upon it; and therefore, notwithstanding the testimony bearing upon that issue, the plaintiffs were entitled to judgment.

If the trial court was correct in that view, the judgment should be affirmed; but, if it was not correct, the question of ownership of property should have been submitted to the jury; and therefore the case must be reversed. This requires a construction of Rule 31 (142 S. W. xx), which reads as follows:

"The plaintiff shall have the right to open and conclude both in adducing his evidence and in the argument unless the burden of proof of the whole case under the pleadings rests upon the defendant or unless the defendant or all of the defendants, if there should be more than one, shall, after the issues of fact are settled and before the trial commences, admit that the plaintiff has a good cause of action as set forth in the petition, except so far as it may be defeated, in whole or in part, by the facts of the answer constituting a good defense, which may be established on the trial; which admission shall be entered of record, when the defendant, or the defendants, if more than one, shall have the right to open and conclude in adducing the evidence and in the argument of the cause."

In the leading case of Smith v. Traders' National Bank, 74 Tex. 541, 12 S. W. 221, our Supreme Court held that the admission made in that case must be construed to mean that the defendant admitted every fact alleged in the petition which was necessary for the plaintiff to establish in the first instance to enable him to recover, but did not admit allegations in the petition which merely denied new matter alleged in the answer, the burden of proof of which was upon the defendant, and the court said:

"We think the court below erred in his conclusion as to the scope and effect of the admission. It is a general rule of the common law that a party who has the affirmative of the issue has the right to open and conclude. The admission in this case is in the language of Rule 31 of Rules of Practice for the District Courts. The manifest purpose of this rule was to secure to a defendant the right to open and conclude when upon the real issues in the case the burden of proof rests upon him; that is to say, when his defense is in the nature of a confession and avoidance of the plaintiff's action, he is permitted to admit the prima facie case of the plaintiff although it is denied by his pleadings, and to open the case by introducing evidence to establish the affirmative defense he has set up. The rule is intended to secure a valuable right and is just, and it should have a reasonable and practicable application. To construe it so as to accomplish in a reasonable and practical manner its object, an admission made in the very language of the rule must be construed to mean that the defendant admits every fact alleged in the petition which it is necessary for the plaintiff to establish in the first instance to enable him to recover, but does not admit allegations in the petition which merely deny new matter alleged in the answer, the burden of the proof of which is upon the defendant. Any other construction would enable the plaintiff to deny the defendant the right to open and conclude upon his affirmative defense by simply amending the petition, as was done in this case, and alleging the contrary of the defenses set up in the answer.

"The answer in this case set up a defense in confession and avoidance of the action. 1 Chitty's Pleading, p. 515. The plaintiff was not bound to allege in its petition that it became the holder of the note for a valuable consideration without notice. It was incumbent upon the defendant in order to make his defense to show the contrary. He was bound to allege and prove the want of consideration and that the plaintiff had notice when it became the holder of the note. In admitting the plaintiff's cause of action, `except in so far as it might be defeated by the facts of the answer,' etc., he does not purport to admit the allegations of the petition, but merely to admit that the plaintiff has a prima facie case, and expressly declines to admit any fact inconsistent with the new matter alleged in his answer."

It may be doubted if the rule was intended to have application to any cases except those in which a defendant has filed a plea in the nature of a confession and avoidance. In fact, such seems to have been the view of the Supreme Court when the case quoted from was decided, because it is therein stated that the manifest purpose of the rule was to secure to a defendant, who had filed such plea, the right to open and conclude. In the case at bar no such plea was filed. The plaintiffs alleged that the property upon which their attachments had been levied belonged to the Boggs Bros., and was subject to seizure and sale to pay their debts. The defendant filed no plea that would constitute a defense, if the plaintiffs' allegations were true, but merely denied their truth, and alleged that the property belonged to him, and was not subject to the payment of the plaintiffs' claims against the Boggs Bros. That was not a plea in confession and avoidance. If Rule 31 has any application to cases in which no plea in the nature of confession and avoidance has been filed, then the only reasonable construction that can be placed upon it is to hold that an admission in the language of the rule admits that the plaintiff's testimony will establish a prima facie case, and entitle him to recover, unless the defendant produces testimony sufficient to overcome such prima facie case in behalf of the plaintiff, and shows that the issue of fact referred to in the defendant's answer should be decided in his favor. We say that such is the only reasonable construction to be placed upon the rule in its application to that class of cases,...