Harrison v. Harwood

• Decision Date: 31 January 1869
• Citation: 31 Tex. 650
• Parties: CHARLES HARRISON v. THOMAS M. HARWOOD.
• Court: Texas Supreme Court

31 Tex. 650

CHARLES HARRISON

v.THOMAS M. HARWOOD.

Supreme Court of Texas.

January, 1869.

Where the plaintiff in attachment had acquired a lien by levy, ot??her creditors could not intervene upon the mere ground that the defendant was insolvent; and hence they were entitled to a pro rata division with the attaching creditor. The law favors the diligent. Pas. Dig. art. 149, note 262.

A motion was made in the court below to quash and dismiss the attachment for various reasons; some, for matters alleged to be apparent upon the face of the attachment; others, for irregularities in the execution of the levy by the ministerial officer. Among the first enumerated, were, that causes for the attachment were stated and sworn to, both in the petition and the affidavit; that the affidavit was made, the bond approved, and the attachment was issued and attested by the deputy clerk, though in the name of the principal clerk; that the attachment was for a different amount from that claimed in the petition; and that the attachment had performed its office when an appearance had been secured. Neither of these grounds is sustained by the facts in the record nor by the law. It is no valid objection, that the party swore to the petition and made a written affidavit besides. If good cause were stated in the petition or the affidavit, it was sufficient to warrant the issuance of the writ of attachment. Paschal's Dig. arts. 138??, 214, notes 257, 259.

The deputy clerk, ex virtute officii, may perform all official acts in the name of the principal clerk which the principal himself can perform in discharging the duties of clerk. Where duties are imposed upon the clerk by statutes, not necessarily belonging to his office as clerk, the rule is different. Pas. Dig. arts. 142, 496, 501; 26 Tex. 131;30 Tex. 31.

A large discretion is left to the officer by the statute, in fixing the valuation of the property levied upon. The policy of the law is simply to hold the property impounded till final judgment for the ultimate satisfaction of the debt. Pas. Dig. art. 149, note 262.

Interrogatories may be so framed as to bring out conversations, even though they may be suggestive of the matters inquired of.

There is a difference between the mere wrongful suing out of an attachment (upon a ground which may not exist) and the suing it out with malice. If the defendant take the first ground, he should plead upon the bond. If upon the latter, he may rely upon all the incidental injuries.

The wrongful suing out an attachment, and the malice with which it may be done, are ??different causes of action. The one would be an action ex contractu; the other, an action ex delicto. The one would survive to the administrator or executor; the other would die with the person. With the greatest latitude allowed in our pleading, this court has repeatedly recognized the distinction here taken. This court has heretofore ruled that the malicious suing out of the writ and the mere w??ongful suing it out are separate and distinct grounds of defense; and under an answer setting forth one of the grounds proof cannot be introduced establishing the other. Pas. Dig. art. 3446, note 797, p. 565.

Where the evidence sustained the charge of the court, and warranted the verdict as to the purpose of selling the defendant's property, the judgment will not be disturbed.

ERROR from Gonzales. The case was tried before Hon. J. J. HOLT, one of the district judges.

The petition set out the note and the credits, and stated the balance due; averred that the defendant was about to fraudulently transfer his property, that the attachment was not prayed for to injure the defendant, etc. The petition was verified under the 138th section of the act to regulate proceedings in the district court (Pas. Dig. art. 138), and the attachment oath (art. 142) was substantially superadded. The oath was made before the deputy clerk of the district court. The principal contest turned upon the motion to quash upon this ground.

Peck & Co. and Conley & Co. intervened as creditors of the defendant, Harrison, and set up that Harwood, knowing of the insolvency of Harrison, had got an unconscientious advantage by levying his attachment on his only available assets. The court sustained exceptions to these interventions. The defendant pleaded the illegal and malicious suing out the attachment in reconvention. The trial turned upon this plea.

The plaintiff proved that the defendant offered to sell the cotton attached, saying that he was broken up, and that his creditors should have none of the proceeds; that he offered to sell his sheep for cash, but refused to sell for his own paper at fifty cents in the dollar, saying that he could not pay his debts; and in both cases he said he wanted the money for the females of his family.

The defendant proved that the attachment put it out of his power to compromise with his creditors at twenty-five cents in the dollar; that the levy greatly annoyed him, and caused him to take to drink; and, in the opinion of one witness, the good man was damaged $2,000 in his feelings. The court charged the jury to determine the reasons existing for suing out the attachment and the motives from all the evidence in the case, and to find against the intervenors. There were several bills of exception, but they were immaterial. Verdict and judgment for plaintiff. The defendant prosecuted error.

Parker & Miller, for plaintiff in error. I. Exception is, that the deputy district clerk cannot approve attachment bonds and issue writs of attachment.

Judges and clerks of the district court and justices of the peace are authorized to approve bonds and issue writs of attachment. Pas. Dig. arts. 142, 143, 145.

Under a similar statute this court held, that the deputy clerk could not take depositions. 5 Tex. 264;6 Tex. 574.

The act of the 9th of February, 1856, provides that deputy clerks of the district court shall have power to take depositions, and to do all other acts that may be lawfully done by their principal. Pas. Dig. art. 496.

Attachment laws, being in derogation of common right, are to be strictly construed against the plaintiffs. 1 Tex. 17;2 Tex. 239;7 Tex. 315; Dal. Dig. 601.

II. The levy recites that it was upon an amount of cotton in the seed, supposed to be four or five bales. It should have been weighed or described in such way that it could be identified. Drake, Attach. §§ 191, 1981; Messner v. Lewis, 20 Tex. 225;23 Tex. 91; 3 Iowa, 387.

III. The deposition of Monroe was wrongly admitted. The commission must be directed to the county of his residence. Pas. Dig. art. 3726. The deposition, having been taken in the county where the court was held, could not be used in evidence until plaintiff or his attorney had made the affidavit required by law. Pas. Dig. art. 3733.

IV. This first charge asked by defendant was, that the affidavit of plaintiff for the writ of attachment was no evidence to go to the jury of the facts therein stated. It was argued as evidence by plaintiff's counsel, and we asked this charge to counteract it, and had the right to have it given to the jury. The other testimony is so meager that it must have influenced the jury.

The second charge, asked by defendant and refused, gave the definition of the clause of the statute, to transfer property for the purpose of defrauding creditors, as laid down in Hopkins v. Nichols, 22 Tex. 206; and the third instruction asked was equally applicable to the case, and should have been given. The fifth instruction asked was to the effect, that because a party is in failing circumstances and unable to pay his debts is no reason for suing out an attachment. 13 Tex. 368;14 Tex. 662;17 Tex. 625.

Albert N. Mills, for the defendant in error.

LINDSAY, J.

This was a suit by attachment, brought by the defendant in error against the plaintiff in error, founded upon a promissory note. The ground of the attachment was that the plaintiff in error was about to transfer his property for the purpose of defrauding his creditors. The defense was a plea in reconvention, alleging that the attachment was maliciously sued out for the purpose of injuring and harassing the defendant. Other creditors of the defendant intervened in the cause, and claimed a share in the proceeds of the property levied upon by the attachment, upon the ground that the defendant was notoriously insolvent, and that the property seized by the levy was the only property which the defendant possessed. The court dismissed the petitions of the intervenors; and upon the trial there were a verdict and judgment for the attaching creditor.

The court very properly dismissed the petitions of the intervenors. The law favors the diligent and not the slothful. If parties will sleep upon their rights until another has discovered the means of securing his own, and avails himself of the methods furnished by law to coerce his debtor to comply with...