Humphrey v. Harrell

• Decision Date: 03 July 1929
• Docket Number: (No. 1843.)
• Citation: 19 S.W.2d 410
• Parties: HUMPHREY et al. v. HARRELL et al.
• Court: Texas Court of Appeals

Page 410

19 S.W.2d 410

HUMPHREY et al. v. HARRELL et al.

(No. 1843.)

Court of Civil Appeals of Texas. Beaumont.

July 3, 1929.

Rehearing Denied July 17, 1929.

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

Suit by D. C. Humphrey and others against S. M. Harrell and others. Judgment for defendants and plaintiffs appeal. Affirmed.

Adams & Hamilton, of Jasper, and Adams & McAlister, of Nacogdoches, for appellants.

Perkins & Perkins, of Rusk, Smith & Lanier, of Jasper, and Seale & Denman, of Nacogdoches, for appellees.

O'QUINN, J.

On February 1, 1926, the Citizens' State Bank of Rusk, Tex., obtained a judgment in the district court of Cherokee county, Tex., against V. G. Beckham of Cherokee county and D. C. Humphrey, John Bean, and Charlie Martin of Newton county. At the next term of said court on March 26, 1926, appellants Humphrey, Bean, and Martin brought this suit to set aside this judgment and to enjoin the levy of an execution issued by virtue thereof. On a hearing before the court, judgment was for appellants, granting the relief sought. The case was appealed to the Texarkana Court of Civil Appeals, and said judgment was reversed and the case remanded for a new trial. 292 S. W. 920. By agreement, the venue was changed to Nacogdoches county, and the instant trial was before the same judge who first tried the case in Cherokee county, and judgment was for appellees. The instant trial was upon the same pleadings as in the first trial. The facts shown are practically the same as on the first trial—no material additional evidence adduced. The facts, undisputed, briefly are:

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 this note, Beckham executed a chattel mortgage on a logging outfit, consisting of 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 above mentioned. 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 Charlie 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 lien 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 were damaged. The suit of Adams against Bean 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 September, 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 the 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 appellees 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 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, the instant 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 in which the default judgment against them was rendered, that, soon after being cited to appear and answer in said suit 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...