Kempner v. Brothers

• Decision Date: 13 February 1885
• Docket Number: Case No. 1877.
• Parties: MARX & KEMPNER v. HEIDENHEIMER BROS.
• Court: Texas Supreme Court

63 Tex. 304

MARX & KEMPNER

v.HEIDENHEIMER BROS.

Case No. 1877.

Supreme Court of Texas.

Feb. 13, 1885.

APPEAL from Falls. Tried below before the Hon. James M. Anderson, Special Judge.

On the 11th day of June, 1879, the appellees recovered a judgment in the county court of Galveston county against William Heiling for $392.67. An execution was issued thereon to Falls county, and on the 21st of July, 1879, levied upon merchandise, groceries, etc., as the property of Heiling, which were valued by the sheriff at $667 on the day of levy. The appellants claimed the property and made affidavit and bond to try the right thereto, and delivered the same to the officer, who delivered the property to the claimants and made return accordingly.

The sheriff returned the oath, bond and copy of execution to the county court instead of the district court of Falls county. Upon a trial in the county court, claimants recovered, and the plaintiffs in the suit appealed to the court of appeals; which, at the Austin term, 1881, reversed and remanded the case on the ground of a want of jurisdiction in the county court over the action.

On return of the mandate, at July term, 1881, the county court ordered that the case be transferred to the district court of Falls county. At the February term, 1882, of the district court, the case was found docketed therein; the original papers, bond and affidavit, etc., not having been filed in that court, however, until the September term, 1883, when the parties appeared by attorneys and written pleadings.

Claimants moved in limine, and otherwise, to abate and dismiss the cause, for divers reasons, to which plaintiffs answered by motion to file papers nunc pro tunc, and substitute bond and affidavit alleged to be lost, etc.

Claimants thereupon excepted to plaintiffs' motion and answer, and replied thereto.

The court having ruled the law on the points raised by these pleadings against the claimants, issues were made up under the direction of the court and the cause thereupon was heard without a jury. Judgment in favor of the plaintiffs.

At the request of the claimants the judge's conclusions of law and fact were reduced to writing, filed, and judgment rendered thereon, to which claimants excepted, gave notice of appeal, filed bond and assigned errors.

Davis & Sayles and J. M. Martin, for appellants, on alleged error in failing to dismiss the cause on defendants' motion, in limine, cited: R. S., arts. 1183, 4822 to 4832, 4833 to 4837, 3203 and 3507 (Limitation); Price v. Luter, 14 Tex., 7;Cook v. De la Garza, 13 Tex., 445; Const., art. V, sec. 8; Gray v. Maddox, 5 Tex., 528;Atkins v. Watson, 12 Tex., 201;Fleming v. Seeligson, 57 Tex., 532.

On the refusal to sustain objections to depositions, they cited: R. S., art. 2236; Purnell v. Gandy, 46 Tex., 200.

That there was error in failing to find on the material issue indicated in the opinion, they cited: Scott v. Alford, 53 Tex., 92;Crow v. Red River Co. Bank, 52 Tex., 369;Osborn v. Koenigheim, 57 Tex., 95;Lehmberg v. Biberstein, 51 Tex., 462;Silliman v. Gammage, 55 Tex., 371;Van Hook v. Walton, 28 Tex., 71-75.

Goodrich & Clarkson, for appellees, on the motion to strike from the docket, cited: Pearson v. Flanagan, 52 Tex., 278;Byrnes v. Morris, 53 Tex., 220;Dixon v. Zadek, 59 Tex., 530;Wheeler v. Wooten, 27 Tex., 258; R. S., p. 709, arts. 4827, 4840 and 4843.

The objections to the depositions came too late, citing: Buford v. Bostick, 58 Tex., 63;Lee v. Stowe, 57 Tex., 444.

That the deed of trust to secure present and future indebtedness, on merchandise sold, and to be sold in future, or afterwards acquired, was void, they cited: Peiser v. Peticolas, 50 Tex., 644;Scott v. Alford, 53 Tex., 93-4;Robinson v. Elliott, 22 Wall., 513;Collins v. Myers, 16 Ohio, 547.

WATTS, J. COM. APP.

Those assignments of error which question the manner in which the papers in the cause were filed in the district court, and the delay in getting the case before that court, do not call for consideration and determination. After the cause was transferred to and filed in the district court, appellants appeared and demanded a jury, and agreed that the cause might be set down for trial on a day named.

Having appeared and recognized it as a pending cause, appellants could not afterwards be heard in limine, to question the manner in which the case came into court.

There was no error in the ruling of the court on the objection made to certain interrogatories on the ground that they were leading. It is now settled that such objections go to the manner and form of taking, and the objection must be made in writing and notice given as prescribed by statute. Lee v. Stowe, 57 Tex., 449;Buford v. Bostick, 58 Tex., 66;Mills v. Herndon, 60 Tex., 358.

Nor did the court err in refusing to admit the affidavit made by the witness Heiling in 1879, which was offered for the purpose of contradicting his evidence embodied in depositions taken in 1882. This was an ex parte affidavit, to which his attention was not directed by appellants in the cross-interrogatories or otherwise. Under what circumstances and for what purpose the affidavit was made does not appear. As disclosed by the record, Heiling has had no opportunity to explain the...