Harrell v. Humphrey

• Decision Date: 17 March 1927
• Docket Number: (No. 3337.)
• Parties: HARRELL et al. v. HUMPHREY et al.
• Court: Texas Court of Appeals

Page 920

292 S.W. 920

HARRELL et al. v. HUMPHREY et al.

(No. 3337.)

Court of Civil Appeals of Texas. Texarkana.

March 17, 1927.

Rehearing Denied March 24, 1927.

Appeal from District Court, Cherokee County; C. A. Hodges, Judge.

Suit by D. C. Humphrey and others against S. M. Harrell and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Smith & Lanier, of Jasper, and Perkins & Perkins, of Rusk, for appellants.

J. B. Forse, of Newton, for appellees.

HODGES, J.

This suit was filed on the 26th day of March, 1926, by the appellees, Humphrey, Bean, and Martin, to enjoin an execution and set aside a judgment rendered against them at a former term of that court. The following is a brief statement of the facts set out in the pleadings and about which there is no apparent dispute:

In August, 1925, V. G. Beckham became indebted to the Citizens' State Bank of Rusk, Tex., in the sum of $450, evidenced by a promissory note due October 1st after date. To secure the payment of that indebtedness Beckham executed a chattel mortgage on several head of horses and mules and three log wagons. The mortgage contained a clause which included any indebtedness which the bank might acquire against Beckham by assignment. In November, 1925, the bank filed suit in the district court of Cherokee county against Beckham for the collection of that debt and the foreclosure of the mortgage. The bank also incorporated in the same suit a note made by Beckham to W. P. Richey for $127 and an account for $588.50 due from Beckham to the East Jasper Mercantile Company, a partnership composed of the appellants Lanier in this suit. The bank claimed to have acquired the note from Richey and the account from the East Jasper Mercantile Company by assignment for a valuable consideration. This made an aggregate indebtedness of $1,250, for which a judgment and a foreclosure upon the mortgaged property was sought against Beckham. As showing a lien securing the assigned indebtedness, as well as the note first mentioned, the bank relied on the stipulations in the mortgage which has just been referred to. The bank also joined as parties defendant in that suit A. Adams, C. C. Brown, J. L. Lanier, D. C. Humphrey, sheriff of Newton county, and the American Surety Company, surety on his official bond, John Bean, and Charley Martin. Judgment was sought against the parties other than Beckham for $750, on the ground that they had caused an injury to the mortgaged property. It appears that some time prior to the filing of the suit by the bank against Beckham, Adams had sued Beckham and caused a writ of attachment to be issued and levied upon the mortgaged property. Humphrey, the sheriff, who executed the writ, delivered the stock for safe-keeping to Bean and Martin. While in the possession of Bean and Martin, it is claimed, the stock was damaged. The suit of Adams against Beckham was settled and the property delivered to the receiver who had been appointed in the bank's suit against Beckham.

All parties defendant in the original suit of the bank against Beckham and others were cited to appear at the next term of the district court of Cherokee county, which began on December 14, 1925. On the 1st day of February, 1926, the case was called for trial. Adams, Brown, Lanier, and the American Surety Company were dismissed from the case, and judgment by default was rendered against Beckham for $1,250, and against Humphrey, Bean and Martin for $725. The judgment recites that upon a writ of inquiry it was determined that Humphrey, Bean and Martin had damaged the plaintiff in the sum of $725.

It appears that prior to the rendition of that judgment the mortgaged property had been sold by the receiver under an order of the court and the sum of $525 realized, which was by the court credited upon the judgment, and execution ordered for the remainder. Some time later the unpaid portion of the judgment was transferred to the appellants H. F. and G. D. Lanier, who, as stated above, composed a partnership doing business under the name of the East Jasper Mercantile Company, the assignor of the account upon which the bank sued Beckham. On the 18th day of February, 1926, an execution was issued on that judgment and placed in the hands of S. M. Harrell, constable, who levied on real estate belonging to Humphrey. Before the day of sale this suit was instituted by Humphrey, joined by Bean and Martin. They alleged in detail the history of the litigation culminating in the default judgment against them and the levy of the execution upon property belonging to Humphrey. They further pleaded as a reason for their failure to answer in the original suit, No. 9639, that soon after being cited they employed an attorney to represent them upon the trial, but that on account of sickness of himself and wife occurring soon after his employment the attorney was unable to file an answer or to appear at the trial. They state that they depended upon the attorney to present their defense, and did not know that he had failed to do so, or that a judgment by default had been rendered...