Johnson v. Tindall

• Decision Date: 28 November 1913
• Citation: 161 S.W. 401
• Parties: JOHNSON v. TINDALL.
• Court: Texas Court of Appeals

161 S.W. 401

JOHNSON v. TINDALL.

Court of Civil Appeals of Texas. Galveston.

November 28, 1913.

Rehearing Denied December 18, 1913.

Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.

Action by C. H. Tindall against Calvin Johnson and another, begun in Justice Court and appealed by defendant to the County Court. From a judgment for plaintiff, the named defendant appeals. Reversed and remanded.

Blount & Strong and J. M. Marshall, all of Nacogdoches, for appellant. V. E. Middlebrook, of Nacogdoches, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee against the appellant and one Will Allen to recover the sum of $117.50, the value of professional services and medicines rendered and furnished by appellee, a physician, to the wife of said Allen, who is the daughter of appellant. At the time of filing the suit in the justice court, the plaintiff procured the issuance of an attachment against the property of both defendants. In his affidavit for attachment plaintiff swore: "That the said defendants, Calvin Johnson and Will Allen, secrete themselves so that the ordinary process of law cannot be served upon them. * * * And that plaintiff will probably lose his debt unless such attachment is issued." The attachment was levied upon two mules belonging to appellant, which he replevied. Appellant answered in the justice court by a sworn denial of plaintiff's claim against him and by a plea in reconvention sought to recover of plaintiff $200 damages for suing out the attachment against him, which he averred was wrongfully, willfully, and maliciously sued out without probable cause. Upon a trial in justice court the following judgment was rendered: "This day this cause came on to be heard upon the regular order of the call of the docket, whereupon came the plaintiff, C. H. Tindall, both in person and by counsel, and also came Calvin Johnson, in person and by counsel, and the defendant Will Allen, though duly called and having been duly cited, answered not but wholly made default herein. Wherefore the plaintiff introduced his evidence, and the court, after hearing the evidence, believes the plaintiff ought to recover against the defendant Will Allen the full amount sued for. It is therefore ordered, adjudged, and decreed that the plaintiff, C. H. Tindall, do have and recover of and from the defendant Will Allen the sum of $117.50, together with 6 per cent. per annum interest thereon from the 1st day of January, 1910, and all costs in this behalf expended, for all of which let execution issue. Then came on to be heard the case as between C. H. Tindall and the defendant Calvin Johnson. The defendant demanded a jury. Both sides announced ready for trial, and six good and lawful jurors were impaneled, to wit, L. T. Blake, foreman, and five others, who, after hearing the evidence and argument of counsel, reported to the court that it was impossible for them to agree, and, having considered of their verdict a reasonable time, they were discharged by the court and a mistrial entered. Then came the attorneys for both the plaintiff and defendant and announced to the court that it was certain that, whichever party to this suit lost in this court, that same party would appeal the case to the county court, and further announced to the court that it was agreed by and between the plaintiff and defendant that the affidavit and bond and the writ of attachment sued out in this case should be quashed and held for naught, and that the court might enter such judgment from the facts of the case as he thought proper. It is therefore considered by the court, and it is so ordered, adjudged, and decreed, that the affidavit and bond for attachment, the writ of attachment with the agreement of the parties, C. H. Tindall and Calvin Johnson, is in all things held for naught and quashed, and therefore that the defendant Calvin Johnson take nothing by his plea for damages. It is the further order of the court that the plaintiff take nothing by his suit as against Calvin Johnson, and that said Calvin Johnson go hence without day, and that he recover of and from the plaintiff, C. H. Tindall, all costs in this behalf expended. The plaintiff then presented to the court his oral motion for a new trial, which is in all things overruled by the court. Whereupon plaintiff gave notice of appeal to the county court of Nacogdoches county, Tex."

The trial in the county court with a jury resulted in a verdict and judgment in favor of plaintiff against the defendant Allen for $117.50 and against the appellant for said sum, less the sum of $2.50, which the jury found to be the actual damages sustained by appellant because of the wrongful suing out of the attachment.

The plaintiff testified: "I was called to see Will Allen's wife on or about October 13, 1909. One of Calvin Johnson's boys came after me. Will Allen's wife was then at her father's, Calvin Johnson. When I arrived at Calvin Johnson's house, I sent for Calvin to come to the house, and when he came I advised him that an operation was necessary on Will Allen's wife, and told him I would not perform the operation unless he would agree to pay for the same, and he promised me that he would pay for the operation. There was no one present when this conversation took place except myself, Calvin Johnson, and Calvin Johnson's wife. I afterwards performed the operation on Will Allen's wife, for which I charged Calvin Johnson $100, and made some other visits to her and furnished her medicine, making the total amount, including the operation, $117.50. This amount is due me by Calvin Johnson, and he has never paid me anything on it." On cross-examination he further testified: "The substance of the conversation that I had with Calvin Johnson at the time I sent for him to come up to the house, and before the operation was performed, and before I did any medical service for Will Allen's wife, was that I told Calvin Johnson that I would not do any work or perform the operation on Will Allen's wife and look to Will Allen for the pay because he was a transient negro, going from one sawmill to another, and he (Calvin Johnson) told me to go ahead and perform the operation, and if Will Allen did not pay for it he would. Calvin Johnson never did at any time promise in writing to pay this debt." Appellant objected to this testimony and asked the court to withdraw it from the jury because it showed that "the defendant Calvin Johnson did not bind himself primarily to pay said debt but only to become security therefor, and said promise, being verbal and not in writing, would not bind the defendant Calvin Johnson legally to pay said debt." The motion to have this testimony withdrawn from the jury should have...