McManus v. Cash & Luckel

• Decision Date: 21 June 1907
• Citation: 108 S.W. 798
• Parties: McMANUS et al. v. CASH & LUCKEL.
• Court: Texas Court of Appeals

108 S.W. 798

McMANUS et al. v. CASH & LUCKEL.

Court of Civil Appeals of Texas.

June 21, 1907.

Appeal from District Court, Harris County; Blake Dupree, Judge.

Action by Cash & Luckel against George J. McManus and others. From a judgment for plaintiffs, defendants appeal. Reversed, and judgment dismissing the action rendered.

R. W. Franklin, for appellant George J. McManus. Norman G. Kittrell, Jr., for appellants Lovejoy & Malevinsky. B. F. Louis, for appellees.

GILL, C. J.

The firm of Cash & Luckel filed this suit on January 25, 1905, against the sheriff of Galveston county and W. J. B. Moor and George McManus to enjoin the sale of certain property belonging to Joseph Franklin, which the sheriff had levied on under an execution issued on a judgment of the county court of Harris county in favor of the firm of Moor & McManus against Cash & Luckel. The property of Franklin was levied on because he was one of the sureties on the appeal bond in that cause. The plaintiffs Cash & Luckel alleged the insolvency of Moor & McManus, and prayed to be permitted to offset against the judgment enjoined a judgment in plaintiffs' favor against Moor & McManus which they had procured in Jefferson county. The judgment enjoined will be referred to as the Harris county judgment and the one sought to be offset as the Jefferson county judgment. Moor answered by general denial. McManus answered by general denial, and pleaded, under oath, that the firm of Moor & McManus was dissolved in 1902, and that the Jefferson county judgment, in so far as it sought to bind either him or the firm assets, was void on the face of the record; that the claim upon which it was based was an individual claim against Moor; further, that one-half the Harris county judgment had been assigned to Lovejoy & Malevinsky for their services in obtaining the judgment; further, that he, McManus, had expended $175 as proper expenses in procuring the Harris county judgment, which sum was a partnership liability, and a prior claim upon the last-named judgment as partnership funds. Lovejoy & Malevinsky intervened, setting up their claim to a half interest for the reason above stated, and claimed the balance of the judgment on an oral assignment to one Mary Walters in extinguishment of a judgment she held against Moor. They pleaded innocent purchase for value without notice both as to themselves and Mrs. Walters. Cash & Luckel answered the pleading of interveners by alleging, among other things, that they owned one half the claim upon which the Jefferson county judgment was obtained, and acquired the other half for value without notice of either of the alleged assignments. It is not necessary to set out the pleadings more fully. The trial, which was to the court without a jury, resulted in a general judgment in favor of Cash & Luckel, and the defendants and interveners have appealed.

The material facts are undisputed, and are briefly as follows: Cash & Luckel, a firm engaged in the real estate business, were on the ____ day of ____, 1901, sued in the county court of Harris county by Moor & McManus, another real estate firm. Lovejoy & Malevinsky, a firm of lawyers, represented the plaintiffs therein for a contingent fee of half the judgment; one-half the claim being orally assigned to them. That suit resulted in favor of the plaintiffs therein. Cash & Luckel appealed, and Joseph Franklin and Mott were sureties on the appeal bond. The appeal resulted in an affirmance, with judgment also against the sureties. The execution which is sought to be enjoined was issued upon that judgment and levied as alleged. Either shortly before or just after its rendition, Mrs. Walters accepted a verbal assignment of the remaining half in discharge of a judgment she held against Moor. In 1902 Cash & Luckel brought suit in the district court of Jefferson county against the firm of Moor & McManus on a claim in the name of Moor, but which they alleged was a partnership liability against the last-named firm. Both defendants were served. McManus answered, contesting the liability of his firm, and averring the claim to be the individual debt of Moor. The case was called for trial on the 3d day of May, 1904, whereupon McManus appeared. The plaintiffs therein moved for a continuance, whereupon McManus moved that the cause be dismissed for want of prosecution. The plaintiffs therein then dismissed the suit as to McManus, and, renewing their application for continuance, the cause was continued as to Moor. The order of the court on the dismissal and continuance is as follows: "Cash & Luckel v. Moor & McManus. 3d day of May, A. D. 1904. This cause being called for trial, defendant George J. McManus moved to dismiss for want of prosecution, thereupon plaintiffs filed their motion to continue, and the court, having considered said motion for continuance and the answer of the defendant George J. McManus thereto, is of the opinion that said motion for continuance should be, and the same is hereby, overruled. Whereupon plaintiffs ask leave to dismiss as to defendant George J. McManus, whereupon it is ordered that the said George J. McManus be dismissed herefrom, and...