Naumovich v. Reese

• Decision Date: 15 February 1952
• Docket Number: No. 14506,14506
• Citation: 247 S.W.2d 417
• Parties: NAUMOVICH v. REESE et al.
• Court: Texas Court of Appeals

Page 417

247 S.W.2d 417

NAUMOVICH v. REESE et al.

No. 14506.

Court of Civil Appeals of Texas, Dallas.

Feb. 15, 1952.

Second Motion for Rehearing Denied March 14, 1952.

Bowyer, Gray, Thomas & Crozier, Dallas, for appellant.

Alexander, George, Russell, Johnson & Passman and Shannon Jones, Jr., all of Dallas, for appellees.

CARMER, Justice.

Appellant has filed a strong motion for rehearing and after considering it we have decided to withdraw our former opinion and write anew in the case.

Appellant's statement of the case, which appellee states is correct, is: 'Appellees brought suit in the 14th Judicial District Court of Dallas County, Texas, against appellant, his son, Nickey Naumovich, and Pan-Aire, Inc., in the nature of a suit to set aside alleged fraudulent deeds of trust and chattel mortgages (executed by Nickey Naumovich and Pan-Aire, Inc., to Pera Naumovich to secure certain promissory notes) and prayed for a temporary restraining order, and a temporary injunction restraining and enjoining appellant from prosecuting his two certain suits in the 14th Judicial District Court or from otherwise disposing of the same for the reason that there was pending in Kaufman County, Texas, in the 86th Judicial District Court a claim arising ex delicto against Pan-Aire, Inc. On hearing on the temporary injunction, the court below granted a temporary injunction 'pending until final hearing and determination of this cause, restraining and enjoining defendants and their attorneys from trying or causing to be tried' two causes filed by Pera Naumovich for judgment on his notes and foreclosures of his liens 'before any court except the 14th Judicial District Court in and for Dallas County, Texas, Judge Sarah T. Hughes presiding.' From said writ of temporary injunction, appellant has perfected this appeal.'

Appellant's nine points in substance are: Error in the granting of the temporary injunction because: (1) The allegations in the pleading being vague, indefinite, and uncertain, and stating only conclusions, are wholly insufficient; (2) the injunction enjoining the prosecution of appellant's suits in any other court than the 14th District Court is not supported by the prayer, and the injunction is contrary to the statutes; (3) appellees did not allege a lien on the property described in the injunction, and their claim here is unliquidated; (4) appellees' claim, if any, was against Pan-Aire, Inc., and not against appellant or his son Nickey Naumovich; (5) the injunction granted enjoins proceedings pending in said trial court contrary to law; (6) the petition failed to allege notice to, or insolvency of, Pan-Aire, Inc., as required by law; (7 and 8) the evidence was wholly insufficient to support findings of fraud; the uncontroverted evidence was that there was a debt due appellant by Pan-Aire, Inc., and by Nickey Naumovich, secured by deeds of trust and chattel mortgages, and that appellees had notice of the alleged tort claim of appellant against Pan-Aire, Inc.; and appellees wholly failed to prove an indebtedness or cause of action in the Kaufman County suit against Pan-Aire, Inc., or against appellant, or Nickey Naumovich; and (9) that part of the judgment which authorizes the appellees to withdraw from the County Clerk's office certain instruments involved here for the purpose of examination, etc., is erroneous because the County Clerk is not a party to this suit.

Appellant briefs points 1 to 6, inc., together, and we will so consider them. These points '* * * relate to the insufficiency of the pleadings of the appellees in a suit of this kind * * *.'

The material portions of appellees' (hereafter referred to as Reese and Bell) pleadings in substance are that on August 30, 1951 appellees filed suit in a district court of Kaufman County against Pan-Aire, Inc., hereafter called Pan-Aire, the sole defendant in said suit and one of the defendants in the present suit, alleging damages caused Reese and Bell by the negligence of Pan-Aire in the total sum of $27,482, and prayed judgment in that amount. They further alleged that Pera and Nickey Naumovich and Pan-Aire, and each of them, with a view and with the intent to hinder, delay and defraud the creditors of Pan-Aire, did on or about July 10, 1951, after Nickey and Pan-Aire were informed of Reese and Bell's claim against Pan-Aire, growing out of an alleged negligent killing of 1930 broad-breasted bronze turkeys by Pan-Aire's agents operating airplanes over the turkey farm in going to and from the point where they conducted crop dusting operations.

That Pan-Aire and Nickey, as makers, had executed certain notes with Pera Naumovich as payee, together with deeds of trust, chattel mortgages, and that Pera Naumovich has filed causes numbered 58,161 and 58,168 against Nickey Naumovich and Pan-Aire, which suits are pending in the 14th District Court. Said mortgages, deeds of trust, etc., have been recorded in the proper records in the county clerk's office of Dallas County. They further allege that such deeds, notes, mortgages, etc., bear dates from October 20, 1946 to June 3, 1951, but that none of said instruments were recorded until July 10, 1951, after they had learned of plaintiffs' cause of action fined in the district court of Kaufman County; that on September 10, 1951, Pera, father of Nickey, filed such causes 58,161-8 in the 14th District Court, seeking a money judgment and a foreclosure of the various liens recited in said mortgages and deed of trust. Reese and Bell further alleged that Nickey and Pan-Aire have filed answers in such suits and have stipulated and agreed to facts, and Pera has filed motions for summary judgment in each cause and has secured settings for hearing on such motions for summary judgment prior to appearance day in the Kaufman County suit. Reese and Bell further allege that no consideration passed from Pera to Nickey or Pan-Aire for said notes, but that they were voluntary, without consideration, and made for the purpose of hindering, delaying, and defrauding creditors of Pan-Aire, and especially Reese and Bell; that Pan-Aire did not have and does not now have any other property within this State subject to execution out of which its then and now existing debts, etc., can be paid, unless the property so fraudulently conveyed, mortgaged, etc., to Pera, can be reached and applied to the payment of the obligation due them (Reese and Bell). That the execution, filing, and recording of such notes, mortgages, etc., had hindered, delayed, and defrauded them as creditors and if they are permitted to have a hearing on the motion for summary judgment filed by Pera against Nickey and Pan-Aire, such acts will violate the rights and tend to render any judgment Reese and Bell may obtain in the Kaufman County case ineffective and uncollectible. Reese and Bell further alleged that Nickey and Pan-Aire are attempting to secrete and convey the assets of Pan-Aire, and through fraud render a judgment against Pan-Aire worthless, unless the writ of injunction prayed for be issued. After hearing of the trial court in which numerous witnesses testified, the court granted the temporary injunction involved. The evidence on such hearing made a question of fact for the court on each of the issues made by the pleading, and the only question raised by points 1 to 6, inc., is the sufficiency of such facts set forth in the pleadings, taken as true, to sustain the judgment.

The pleadings show the parties involved are father, son, and a corporation managed and operated by the son. Such a relationship of the parties, in a case of this kind, is a badge of fraud. 20 T.J., 158, Fraud and Deceit, sec. 108; 20 T.J., 526, Fraudulent Conveyances, sec. 172; Farrell v. Comer, Tex.Civ.App., 84 S.W.2d 300. The pleadings also show the instruments evidencing the debt, liens, etc., although dated on various dates prior to the time the liability, if any, of appellant to appellees in the pending suit in Kaufman County accrued. Such instruments were not recorded until after Reese and Bell's cause of action accrued. This is also a badge of fraud. 20 T.J. 519, Fraudulent Conveyances, sec. 170.

On the hearing below, the evidence, among other matters, revealed that one of the instruments evidencing one of the liens involved, was on a printed form which the printer thereof testified had not been printed by him until after the written date shown on said instrument as well as the written date in the acknowledgment therein.

The cause of action in the Kaufman County suit is for the negligent killing of turkeys by a crop-dusting airplane flying from its base over appellees' turkey farm enroute to farm lands to be dusted under...