Hanchett v. Gray

• Decision Date: 01 January 1852
• Citation: 7 Tex. 549
• Parties: HANCHETT v. GRAY AND OTHERS.
• Court: Texas Supreme Court

7 Tex. 549

HANCHETT

v.GRAY AND OTHERS.

Supreme Court of Texas.

1852.

It may well be questioned whether intervenors can except to past proceedings for mere formal defects; but there is no question as to their right to interpose a general demurrer or exceptions going to the merits of the action. (Note 75.)

Where the plaintiff alleged that the defendant had recovered a judgment against himself and one W. for $750, but that theretofore the plaintiff had recovered a judgment against the defendant for $709.36, upon which there had been an execution with a return of “no property,” and that the said defendant had no property, within the knowledge of the plaintiff, with which to satisfy the debt, praying that the two judgments might be set off against each other: Held, On a demurrer by intervenors, that the allegations presented a proper case for the relief prayed for. (Note 76.)

It seems that it is not necessary for debts to be mutual and due in the same right, in order to be capable of being set off against each other, where the party against whom the set-off is pleaded is alleged to be insolvent. (Note 77.)

Error from Walker. On the 6th day of October, 1848, the plaintiff in error filed his petition, alleging that on that day the defendant in error, Gray, a resident of that county, had recovered a judgment in that court against the petitioner and one Wilcox, for $750; that theretofore, on the 31st day of March, 1847, the petitioner had recovered against Gray a judgment for $709.36; that on the last-named judgment execution had issued to the sheriff of that county, and had been returned by him with a credit of the costs and $4.33 on the judgment; and that the sheriff made the further return that there was no property of the defendant to be found in his county. The petition further stated that Gray had no property in his possession, within the knowledge of the petitioner, with which to satisfy the debt; that Wilcox has no property or effects with which to satisfy the judgment recovered by Gray against him and the petitioner; that the entire judgment must be satisfied by the latter; and that, unless restrained, Gray would transfer or proceed to collect the same of him, while he would be unable to collect his judgment recovered against Gray; that he had applied to the latter to apply his judgment to the satisfaction, pro tanto, of the judgment obtained by Gray against himself and Wilcox, which Gray refused to do. He therefore prayed an injunction, which was granted.

Afterwards the appellees, Potter and Hay, intervened, claiming to be the owners of the judgment recovered by Gray against Hanchett and Wilcox, by the assignment thereof to themselves by Gray, on the day of its rendition. They demurred generally, and excepted to the petition and the order granting the injunction, for the following causes:

1st. That the petition did not state the residence of the parties.

2d. That there was no sufficient affidavit of its truth.

3d. That the bond was insufficient.

Whereupon they moved the court to set aside the order granting the injunction, and to dismiss the petition. They further answered to the merits.

At the Fall Term, 1851, the court sustained the demurrer, dissolved the injunction, and dismissed the petition, and gave judgment for the defendant Gray, for the use of the intervenors, against the plaintiff and his sureties in the injunction bond. The plaintiff brought a writ of error.

Yoakum & McCreary, for plaintiff in error.

M. M. Potter, for defendants in error.

I. The intervenors had the right to set up any legal exception to the proceedings on the part of Hanchett that Gray could; otherwise plaintiffs and defendants might collude, to the manifest injury of the parties really in interest--as, for instance, in this cause, it may well be that Gray would be willing that Hanchett should apply the judgment against Hanchett and Wilcox to the satisfaction of the judgment of Hanchett v. Gray, as by that means Gray would be paying $1,450 with a judgment of $750.

II. The proceedings on the part of Hanchett to obtain the injunction were wholly insufficient, and do not show any cause or right for the intervention of the court; the object being to set off a judgment of Hanchett v. Gray against a judgment of Gray v. Hanchett and Wilcox; and it is well settled, both at law and in equity, that joint and separate demands cannot be set off against each other. The demands must be mutual, and due to and from the same persons, in the same capacity. (Albright v. Aldriche's Adm'r, 2 Tex. R., 166; Dale v. Cooke, 4 Johns. Ch. R., 11; Duncan v. Lyon, 3 Id., 351; Murry v. Holland, Id., 573; 2 Story's Eq. Ju., sec. 1437; Leeds v. Marine Insur. Co., 6 Wheat. R., 571, in 5 Cond., 188; Tucker v. Oxley, 5 Cr., 34, in 2 Cond., 182.)

There are exceptions to this general rule, as shown in the foregoing authorities, but this case is not within the exceptions. The petition does not even state that Gray was insolvent, but carefully avoids such a charge.

WHEELER, J.

We have carefully examined the record, and are unable to perceive any legal ground on which the judgment of the court can be sustained.

It may well be questioned whether the intervenors could be permitted to except to the proceedings for mere formal defects or irregularities, not going to the merits or foundation of the action.

In Louisiana it is held that a third person intervening cannot plead exceptions having for their object the dismissal of the cause for irregularities in the proceedings. (4 N. S., 488; 8 M. R., 55.) Such a party, it is held, cannot take...