Goodbar v. City Nat. Bank

• Decision Date: 05 December 1890
• Citation: Goodbar v. City Nat. Bank, 14 S.W. 851, 78 Tex. 461 (Tex. 1890)
• Court: Texas Supreme Court
• Parties: GOODBAR <I>et al.</I> v. CITY NAT. BANK OF SULPHUR SPRINGS.

14 S.W. 851

GOODBAR et al. v.CITY NAT. BANK OF SULPHUR SPRINGS.

Supreme Court of Texas.

December 5, 1890.

Appeal from district court, Hopkins county; E. W. TERHUNE, Judge.

Peteet & Crosby, Crawford, Garrison & Keasler, Leach & Templeton, and Stanley & Spoonts, for appellants.E. B. Perkins and J. A. B. Putnam, for appellee.

STAYTON, C. J.

The City National Bank of Sulphur Springs brought this action against A. B. Williamson on December 3, 1889, to recover $19,666.81, claimed and alleged to be due at different dates between that and March 4, 1890.Writ of attachment was sued out and levied on a stock of goods, the property of Williamson.Soon afterwards appellants, who were also creditors of Williamson, brought their several actions against him, sued out writs of attachment, and caused them to be levied on the same goods, subject to the prior levy of appellee.Appellants all reduced their claims to judgments, with foreclosure of liens acquired by attachment, and on March 11, 1890, intervened in this case, seeking to show that the claim and attachment of appellee was invalid, and that they were entitled, in the order of the levies of their respective attachments, to the proceeds of the goods which had been sold under order of court.They alleged that Williamson was not indebted to appellee; that the notes made the basis of its action were without consideration, and made in order that a suit might be brought on them, and property attached, and thus placed beyond the reach of other creditors; and that there was collusion and conspiracy between Williamson and appellee to carry out such a purpose.Intervenors further alleged that no ground existed for appellees suing out a writ of attachment, and that this was not necessary to secure any debt Williamson might owe it, but that, upon the contrary, appellee was indebted to Williamson, and had on deposit large sums of money belonging to him.It was further alleged that the affidavit for attachment made by agent of appellee was not sufficient, and it was alleged that, by representations made by appellee's cashier, Williamson was enabled to establish a large credit, and to create the indebtedness to intervenors, and that this was but a part of the conspiracy between Williamson and appellee, whereby other creditors were to be defrauded through attachment proceedings to be instituted by appellee, or in some other manner.A trial before a jury resulted in a judgment in favor of appellee against intervenors as well as against Williamson, and enforcing appellee's rights under the levy of its attachment.Appellants have filed no assignments which question the sufficiency of the evidence to entitle appellee to the judgment obtained, but has filed and insists on many assignments that relate to rulings of the court made during the trial.

Appellants filed a motion to quash the attachment sued out by appellee, on the ground that it was not stated, in affidavit for attachment, that Williamson was indebted to it in the sum sued for, at the time the affidavit for attachment was made.The record leaves it uncertain whether the court held that the affidavit for attachment was sufficient, or held that appellants, claiming lien by attachment levied subsequently to the levy of appellee, could not question the sufficiency of the affidavit.The affidavit, made for attachment by appellee's cashier, in all respects affecting its sufficiency, was the same as that considered in case of Bank v. Flippen, 66 Tex. 611, 1 S. W. Rep. 897 and under the rules therein announced was insufficient, and the writ, on motion by Williamson, should have been quashed; but he made no motion, and the question arises whether appellants could, by motion or otherwise, have the writ quashed on account of the insufficiency of the affidavit.The statute provides that "every original attachment issued without affidavit and bond as herein provided shall be abated on motion of defendant."Rev. St. art. 159.In accordance with this statute, the right to abate an attachment, on account of defects in affidavit or bond, has been restricted to defendants, and has not been allowed to creditors subsequently causing the same property to be attached.Nenney v. Schluter, 62 Tex. 328;Bateman v. Ramsey, 74 Tex. 592, 12 S. W. Rep. 235.This seems to be in accordance with the great weight of authority.In Fridenberg v. Pierson, 18 Cal. 155, the supreme court of California, after quoting the following from Drake on Attachment, — "Whatever irregularities may exist in the proceedings of an attachment creditor, it is a well-settled rule that other attaching creditors cannot make themselves parties to these proceedings for the purpose of defeating them on that account; but when an attachment is based on a fraudulent demand, or one which has, in fact, no existence, it is otherwise, as will appear from a review of the action of courts of a high order of learning and ability," — said: "What are irregularities within the meaning of the text is illustrated by the cases referred to by the author.Thus in Foster v. Jones, 1 McCord, 116, the irregularity consisted in the omission of the plaintiff to make affidavit of his debt before suing out the writ of attachment; in Chambers v. McKee, 1 Hill, (S. C.) 229, in the omission to give the required bond; in Camberford v. Hall, 3 McCord, 345, in giving the attachment bond in double the debt instead of double the damages or sum sued for; in Kincaid v. Neall, Id. 201, in the omission to return the attachment bond; in Van Arsdale v. Krum, 9 Mo. 401, for insufficient bond.In some cases, third parties have been allowed to intervene where the debtor was shown not to be subject to the process, or the defendant's property not so subject.But if the defendant does not insist upon the statutory steps being taken in the matter of bond or affidavit in the proper form we cannot perceive upon what principle a creditor can interfere, any more than in the case of a judgment rendered upon an insufficient complaint, or otherwise irregular and reversible."In Ward v. Howard, 12 Ohio St. 161, it was said: "It can with no propriety be claimed that a subsequent attaching creditor is entitled to the latitude of objection to the proceedings of a prior attaching creditor, as the defendant in the action.On the contrary, anything may be waived by the defendant which is substantially no injustice to the other creditors, or is not intended to guard their rights.They can take no advantage of what may be properly regarded as informalities or irregularities, though constituting good grounds for objection on the part of the defendant.The objection, therefore, that a proper undertaking was not executed, and that the facts were defectively stated in the affidavit, were properly overruled by the court.But the case itself must be one in which the law allows an attachment.If it be not, the objection of a subsequent attaching creditor stands on a like principle as a want of jurisdiction, and would be equally available as collusion or fraud."The authorities are fully cited by the following elementary writers: Drake, Attachm.§§ 262,273;Wade, Attachm.§§ 54, 286;Wapl. Attachm. 477.If the making of the affidavit and giving of the bond were matters strictly jurisdictional, it would be the duty of the court, without motion from a defendant, to abate an attachment when the statute in reference to these was not complied with; but the giving of the right to abate only to a defendant on account of defects of this character evidences that it is one which he may waive, as may a defendant, many matters intended solely for his protection.The right of a subsequent attaching creditor to intervene in an action in which a prior attachment has been levied, for the purpose of showing that the older attachment is based on a fraudulent demand, or one which has, in fact, no existence, for the purpose of having declared his lien superior, and enforcing payment out of the attached property, is fully recognized by the decisions of this court.

It is urged that the court erred in stating to the jury, in charge given, that the affidavit for attachment averred that defendant was justly indebted to plaintiff in sum sued for; and further that the court erred in refusing to give the following charges asked by intervenors: "The court charges you, as a matter of law, that the affidavit for attachment, made on the 3d day of December, 1889, in behalf of plaintiff against defendant, is not valid, and is insufficient in law, which could have been taken advantage of by the defendant.If you believe from the evidence in this case that the defendantA. B. Williamson was requested by any of the intervenors, their agents or attorneys, to quash said affidavit for attachment, and the defendant Williamson refused to quash said attachment, such refusal, if any, by Williamson, would be an evidence of fraud in this case."Williamson testified that J. D. Peteet, one of the attorneys of intervenors, pointed out the defect in the affidavit to him, and requested him to quash, and that he did not do so."You are further instructed that, while the intervenors cannot take advantage of the defect in the affidavit for attachment made by John T. Hargrove, on the 3d day of December, 1889, for the purpose of quashing said attachment, yet the fact of the failure of A. B. Williamson to have said attachment quashed, which you are charged, under the law, he could have done, and his permitting the plaintiff to foreclose its said attachment lien, are circumstances which may be...