Hardee v. Vincent, 1855-7602.

• Decision Date: 12 February 1941
• Docket Number: No. 1855-7602.,1855-7602.
• Parties: HARDEE, Sheriff, et al. v. VINCENT et al.
• Court: Texas Supreme Court

Page 1072

147 S.W.2d 1072

HARDEE, Sheriff, et al. v. VINCENT et al.

No. 1855-7602.

Commission of Appeals of Texas, Section B.

February 12, 1941.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by Edna Vincent and husband against Dan H. Hardee, Sheriff, and another, to enjoin the levy of execution upon certain property. Decree granting permanent injunction was affirmed, 127 S.W. 2d 333, and the defendants bring error.

Decree reversed, injunction dissolved, and cause remanded to the district court.

E. D. Slough, of Amarillo, for plaintiffs in error.

Lackey & Lackey, of Stinnett, for defendants in error.

SLATTON, Commissioner.

This is a suit brought in the district court for injunction and for damages by Edna Vincent, joined by her husband U. A. (Doc) Vincent, against the sheriff of Hutchison County, and Tootle-Campbell Dry Goods Company. One of the purposes of the suit was to restrain the levy of an execution issued out of the county court of Hutchison County, Texas, on a judgment rendered on November 3, 1937, in favor of Tootle-Campbell Dry Goods Company against U. A. (Doc) Vincent for the sum of $385.95. The property upon which the levy was about to be made consisted of a stock of merchandise and fixtures situated in a storebuilding at Stinnett, Texas, alleged to belong to the separate estate of Mrs. Vincent. A motion to dissolve the temporary restraining order was filed and after hearing evidence the trial court granted a perpetual injunction in accordance with the prayer of Mrs. Vincent. The sheriff and the dry goods company appealed to the Court of Civil Appeals. The Amarillo Court of Civil Appeals affirmed the decree of the trial court. 127 S.W.2d 333. This Court granted a writ of error. Two contentions are presented to this Court, viz.: (1) That the pleadings of Mrs. Vincent are insufficient to show that the property involved belonged to her separate estate: (2) that the evidence failed to show that the property in question was paid for with the funds belonging to Mrs. Vincent's separate estate. We shall only consider the second contention. The evidence shows that U. A. (Doc) Vincent on the 16th day of December, 1935, transferred and conveyed to his wife, Mrs. Edna Vincent, lot No. 2, block 54, in the town of Stinnett, Texas, and all of the stock of merchandise and trade fixtures contained in said store. The written instruments evidencing such conveyances were forthwith recorded in the county records. U. A. (Doc) Vincent testified as follows: "The store situated on Lot 2 in Block 54, in Stinnett, Texas, has been continuously operated for several years by myself and wife. This business was commenced with funds belonging to my wife sometime prior to December 16, 1935, but was operated in my name. Since December 16, 1935, the business has been operated under the name of U. A. (Doc) Vincent, which is a trade name. I do not claim any interest in the business whatever. It belongs to my wife, Mrs. Edna Vincent. She gave me a working interest in the business and agreed to pay me $100.00 per month salary. The bank account has been carried in the name of U. A. (Doc) Vincent. The stock of merchandise consists of meat, groceries and dry goods; a gasoline filling station has and is being operated in connection with the business. Nearly all of the dry goods were bought on credit and were sold on credit and customers are still owing for the greater portion. I had charge of the dry goods. My wife had charge of the groceries, and has mostly paid cash for the past year and half."

Six chattel mortgages were introduced in evidence showing the following transactions:

"Sale by Hobart Mfg. Co. to Vincent of one Coffee Mill, price $133.40, down payment $44.25, balance payable in monthly installments, dated March 27, 1936.

"Sale by Wayne Company to Vincent of two...