P. J. Willis & Bro. v. Pinkard

• Decision Date: 22 June 1899
• Citation: 52 S.W. 626
• Parties: P. J. WILLIS & BRO. v. PINKARD.
• Court: Texas Court of Appeals

52 S.W. 626

P. J. WILLIS & BRO. v. PINKARD.

Court of Civil Appeals of Texas.

June 22, 1899.

Appeal from district court, Cherokee county; Tom C. Davis, Judge.

Action by P. J. Willis & Bro., a corporation, against Pinkard & Suggs. Judgment for plaintiff. On levy of execution, W. T. Pinkard, temporary administrator of E. W. Pinkard, presented a bond and oath for trial of the right of property. Judgment for claimant, and plaintiff appeals. Reversed.

S. P. Willson, French & French, and Thos. B. Greenwood & Son, for appellants. Weeks & Fleager, for appellee.

GILL, J.

On the 26th day of September, 1898, an execution was issued upon a judgment rendered in the district court of Galveston county in a suit by P. J. Willis & Bro. against Pinkard & Suggs. At the date of the rendition of the judgment, P. J. Willis, R. S. Willis, and Joseph G. Goldthwaite composed the partnership of P. J. Willis & Bro., and the firm of Pinkard & Suggs was composed of W. T. Pinkard and L. G. Suggs. The date of this judgment was July 19, 1889, and the amount of the recovery was $3,061.09, with 8 per cent. interest and costs. The execution was levied by the deputy sheriff of Cherokee county upon the stock of groceries in controversy on September 27, 1898, the goods being found in possession of W. T. Pinkard, one of the defendants in execution, and were taken into possession by said officer. On the 28th of September, 1898, the probate court of Cherokee county, upon the application of W. T. Pinkard (filed on the same day), appointed him temporary administrator of the estate of E. W. Pinkard, deceased, who died on the 26th day of September, 1898. By the order appointing him, the said W. T. Pinkard was empowered "to take charge of and care for and preserve the stock of goods, wares, and merchandise belonging to said estate, until Wednesday of the first week of the October term of said court, the same being the 12th of October, 1898." W. T. Pinkard qualified as such administrator on the 28th day of September, 1898, and on October 1st following presented to the officer who levied the execution a claimant's oath and bond for the trial of right of property, the bond and oath being made in his capacity as temporary administrator, and the title to the property asserted to be in the estate of E. W. Pinkard; whereupon the officer delivered the goods to the claimant, and made return of the oath and bond as required by law, valuing the property at $903.34. Appellants' tender of issues was to the effect that the property at the date of the levy was owned by W. T. Pinkard, one of the defendants in execution, and praying judgment for the value thereof, with interest, and 10 per cent. damages, against the claimant and the sureties on his bond. Appellee pleaded general denial, and specially that the property levied on belonged to the estate of E. W. Pinkard, deceased; that appellee was appointed temporary administrator of the estate of deceased, with authority to take said estate into his possession; and that the court had continued such administration, and authorized the defense of this suit. He also excepted that appellants had failed, in their tender of issues, to aver whether P. J. Willis & Bro. was a partnership or a corporation, and, if a partnership, failed to set out the names of the individuals composing the firm, and that, if a corporation, the pleadings failed to aver whether it was a domestic corporation or foreign corporation, and, if a foreign corporation, there was no allegation of compliance with the law so as to authorize it to do business in this state. Appellee alleged as a fact that P. J. Willis & Bro. was now a corporation organized under the laws of another state, and was without authority to operate in this state; that the old partnership of P. J. Willis & Bro., composed of P. J. Willis, R. S. Willis, and J. G. Goldthwaite, who procured the judgment against Pinkard & Suggs, had long since been dissolved by the death of P. J. and R. S. Willis, each of whom died prior to the issuance of the execution; and that the execution was void because not issued in compliance with the statute regulating the issuance of execution when one or more of the plaintiffs are dead, and that said judgment was rendered in favor of the three partners composing the firm, and the execution issued in accordance with the terms of its judgment. Appellants raised, by proper pleading, the question of the power of the temporary administrator to maintain this action as such. W. T. Pinkard does not appear in his individual right. The cause was tried by the court without a jury, and judgment was rendered in favor of the claimant, the court having reserved all his rulings upon exceptions and preliminary questions until the entire case was submitted. The proof was conflicting on the question of title, and we are not prepared to say that the evidence is insufficient to support the finding of the trial court that the title was in the estate of E. W. Pinkard. The evidence also showed that P. J. Willis & Bro. were at the time of the rendition of the judgment against Pinkard & Suggs a partnership, as alleged by appellee, and that P. J. and R. S. Willis were dead at the date of the issuance of the execution in question. It was also shown that the appellant P. J. Willis & Bro. was at the date of the issuance of the execution, and now is, a corporation. The sheriff, in his return, valued the property at $903.34. The witness Pinkard testified that its value did not exceed $500, and the court did not find upon the question of value. The court found that the property was levied upon in the possession of W. T. Pinkard as an individual, and the correctness of that finding has not been questioned. It was also shown that the execution in question was in fact issued in the name of P. J. and R. S. Willis and J. G. Goldthwaite, composing the firm of P. J. Willis & Bro. It was further established that upon the expiration of the term of W. T. Pinkard as temporary administrator, on the 12th day of October, 1898, no permanent administrator was appointed, and...