Neblett v. Barron
| Decision Date | 15 January 1910 |
| Citation | 160 S.W. 1167 |
| Parties | NEBLETT v. BARRON et al. |
| Court | Texas Court of Appeals |
Appeal from Erath County Court; J. B. Keith, Judge.
Action by Charles Neblett against H. C. Barron, in which J. W. Hall and Adam Caughman intervened. From a judgment for interveners, plaintiff appeals. Affirmed as to intervener Hall, and reversed and rendered as to intervener Caughman.
See, also, 104 Tex. 111, 134 S. W. 208.
Daniel & Carlton, of Stephenville, for appellant. Eli Oxford, of Wichita Falls, and Wm. Pannill, of Stephenville, for appellees.
Appellant Neblett, on October 31, 1908, sued H. C. Barron, a tenant on the farm of J. W. Hall, upon a note for $542.76, and to foreclose a mortgage given by Barron to secure the note upon two certain mules and the first, second, third, fourth, fifth, and sixth bales of lint cotton to be raised on Hall's farm. Neblett sequestered the mules and cotton, and soon thereafter J. W. Hall intervened in the suit, seeking a judgment against Barron upon an itemized account for supplies, tools, etc., furnished said Barron with which to make the crop of 1908, amounting to $275.75. He alleged that therefore he had the landlord's preference lien upon the cotton sequestered by Neblett, and he prayed as against Neblett for a foreclosure of the lien. Yet later one Adam Caughman also intervened, claiming an indebtedness against Barron in the sum of $39.60 for daily labor, to secure which he also asserted a lien on the cotton sequestered by Neblett. Both intervener Hall and Caughman alleged that Neblett had converted the six bales of cotton mentioned in his mortgage and sequestered by him, and they prayed for judgment for its value, less the amount of the landlord's rent, which had already been paid to Hall, in so far as necessary to satisfy their several demands.
The trial resulted in a judgment in substance that Neblett recover as against Barron the amount of his debt and for a foreclosure of his lien, and for Hall and Caughman as against Barron for the value of the cotton, but provided that certain other cotton and crops of the tenant, Barron, who had not answered in this suit, which had been distrained by Hall, be sold, and the proceeds, after deducting costs of gathering and the costs of the suit in which the distress warrant had issued, be applied in satisfaction of the judgment in this case in Hall's favor, and that for any balance due him he should have judgment and execution against Neblett; that if, after the satisfaction of Hall's claim, there yet remained anything of the judgment against Neblett for the value of the cotton sequestered by him (fixed at the sum of $168.26) that Adam Caughman should have judgment and execution for such value so left in Neblett's hands to the extent of his, Caughman's, claim. From this judgment, Neblett has appealed.
It is elementary that all persons interested in the subject-matter of litigation are proper parties, and the court, therefore, did not err in overruling the exception to intervener Hall's petition because of the fact that appellant had disposed of the cotton, and that intervener sought to hold him liable as for a conversion. Appellant's action throughout was to establish and foreclose a mortgage lien on the cotton; so, too, was that of intervener Hall, the latter asserting a superior lien, so that the vital questions in the case were questions of priority of lien, and the actual disposition of the cotton was immaterial save as to the issue of conversion and as a guide to the court in forming his judgment. Besides, the fact of sale referred to did not appear on the face of intervener's petition, and the exceptions, therefore, did not reach it.
The objection to the proof of intervener Hall's itemized account against the tenant, Barron, on the ground that Barron was not cited, is not well taken, in view of the fact recited in the judgment that he was cited and of the character of the action. Proof of supplies advanced to the tenant was one of the necessary steps in establishing Hall's asserted preference lien, and appellant cannot be heard on a question of service in which the tenant, Barron, alone is interested, and of which he has made no complaint.
The objection to the oral testimony of the bookkeeper of the firm which furnished the supplies, to the effect that the itemized account was correct, was rendered harmless by the subsequent introduction of the book of accounts to the same effect, with proof that the book had been regularly and correctly kept.
Nor was there error in the oral evidence that some of the items had been furnished an employé of the tenant on written orders of the latter. The material inquiry was whether the items had been advanced by the landlord. They were charged to him, they have not been disputed by the tenant, and the form and contents of the orders were immaterial. They would not constitute better evidence of the fact that they were given by the tenant, and that supplies were furnished thereon, than the positive testimony of a witness having knowledge of the facts.
It is insisted that the judgment in favor of the intervener is erroneous on the ground that he waived his lien. But this was clearly a...
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