Jones v. Meyer Bros. Drug Co.

• Decision Date: 12 January 1901
• Parties: JONES et al. v. MEYER BROS. DRUG CO. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 553

61 S.W. 553

JONES et al. v. MEYER BROS. DRUG CO. et al.¹

Court of Civil Appeals of Texas.

January 12, 1901.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by the Meyer Bros. Drug Company against J. L. Jones and others; Burton Richards, intervener. From a judgment for plaintiff and intervener, defendants appeal. Affirmed.

Barrett, Simmons & Freeman and Galloway & Templeton, for appellants. A. H. Culver, Moseley & Smith, and T. B. Eppstien, for appellees.

TEMPLETON, J.

The appellant Jones and one Howard were partners in the retail drug business at Denison, Tex. In June, 1895, Howard sold his interest in the business ostensibly to the appellant Simmons, but the appellees contend that the appellant De Gaugh was the real purchaser. The business was thereafter conducted in the name of Jones & Simmons. De Gaugh had been engaged in the drug business at Austin, Tex., and had become indebted to the Meyer Bros. Drug Company. He failed in business, and the drug company reduced its claim against him to judgment. Execution was issued on the judgment, and on April 11, 1896, was levied on De Gaugh's interest in the business, run in the name of Jones & Simmons. There was a sale under the levy on May 5, 1896, and the drug company became the purchaser at the sale, and received a bill of sale from the sheriff. On December 21, 1898, the drug company brought this suit against Jones, Simmons, and De Gaugh, alleging the facts above stated, and, further, that De Gaugh was at the time of the levy the owner of an undivided one-half interest in the said business, by virtue of the purchase from Howard; it being charged that the purchase was made in the name of Simmons for the purpose of covering up De Gaugh's property and preventing its seizure by his creditors. Burton Richards intervened in the suit, and alleged that he was trustee in bankruptcy for the creditors of De Gaugh, and that De Gaugh had an interest in the said business, which he, as trustee, was entitled to recover. There was a trial by jury, which resulted in a judgment in favor of plaintiff and intervener for the recovery of an undivided one-half interest in all the property owned by the firm of Jones & Simmons. Thereupon a receiver was appointed, who qualified and took charge of the business. Jones, Simmons, and De Gaugh have appealed from said judgment and from the order appointing the receiver.

It was alleged by the drug company that the judgment under which it claims was rendered in the district court of Travis county, but the judgment introduced in evidence was rendered in the county court of said county. It is insisted that the variance is fatal, and constitutes fundamental error. We are of the opinion that the objection should have been made when the judgment was offered, and that, as this was not done, it cannot be urged for the first time after verdict. The plaintiff claimed title to the property sued for by virtue of a judgment and execution sale thereunder against De Gaugh. The misdescription of the court in which the judgment was rendered was obviously a clerical mistake, which might have been corrected by trial amendment, had the objection been made at the proper time. It is not shown that appellants were misled or injured by reason of the mistake, or that the granting of a new trial would place them in any better position, so far as this issue is concerned. If appellants desired to take advantage of the mistake of the pleader, they should have interposed their objection on the trial, and, not having done so, cannot now complain.

It is contended that the sheriff's return on the execution is insufficient, for the reason that the manner in which the levy was made is not shown. Article 2352, Rev. St., provides how a levy on partnership property shall be made; and in Middlebrook v. Zapp, 79 Tex. 323, 15 S. W. 258, it was held that the statute must be followed by the officer in making the levy. But the statute does not prescribe any form of return, and does not provide that the return shall show the manner in which the levy was made. The return will be liberally construed, and the presumption that the officer did his duty will be indulged. Miller v. Alexander, 13 Tex. 503; Murfree, Sher. § 839a. In this case the return shows that the writ was levied, and the presumption is that it was levied in the manner prescribed by law. The legality of the levy was not raised by the pleadings, and the return cannot be attacked collaterally. Flaniken v. Neal, 67 Tex. 629, 4 S. W. 212. The title of the purchaser at execution sale does not depend on the return, and any informality or irregularity therein will not affect his title. Fitch v. Boyer, 51 Tex. 344.

There was appended to the return a notice of the levy, directed to Jones & Simmons, and signed by the sheriff. This notice is, presumably, a copy of the notice of the levy left by the sheriff with Jones; but it is not referred to in the return, or shown by extrinsic evidence to be such copy. It was not offered in evidence by the plaintiff, but was introduced by the defendants. As the return showed a valid levy, the plaintiff was not bound to produce the notice, and the introduction of it by the defendants would not invalidate the levy, unless it showed that the levy was not made as required by law. The notice was, in form, in substantial compliance with the statute, but, in describing the attached property, omitted the fixtures which were shown by the return to have been levied on. Even if the notice is considered as a part of the return, and as controlling in the matter of description, the levy would still be good, as to the property seized other than the fixtures. The levy and sale thereunder were sufficient to convey to the drug company the title of De Gaugh in and to any of the stock of merchandise held in the name of Jones & Simmons at the time of the levy, and the court did not err in so instructing the jury.

The right of the intervener to judgment is questioned on the ground that his petition and proof are insufficient to show that he, as trustee, had any title to, or right to the possession of, the property sued for. It was alleged by the intervener that he was, by F. B. Dillard, referee in bankruptcy for the Eastern district of Texas, duly appointed trustee for the creditors in the matter of J. A. De Gaugh, bankrupt, pending in the United States district court for said district; that he accepted the appointment, and was duly qualified, and by virtue thereof became entitled to the possession of all the property of the said De Gaugh not exempt from forced sale, for the purpose of holding the same subject to the demands of the creditors and the orders of said court. No exception to the petition was urged before trial, but it is insisted now that the petition is defective, for the reason that it was not alleged that De Gaugh had been adjudged a bankrupt, and that the intervener was appointed trustee by the court or elected by the creditors, and that he had obtained leave of the bankruptcy court to intervene in this suit. The first ground of objection, conceding it to be well taken, is obviated by the answer of the defendants, wherein it was alleged that De Gaugh had been adjudged a bankrupt. It is true that the plaintiff demurred to that paragraph of the answer, and that the demurrer was sustained, but that fact did not affect the plea as an answer to intervener...