Parlin & Orendorff Co. v. Hanson

• Decision Date: 13 May 1899
• Parties: PARLIN & ORENDORFF CO. et al. v. HANSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

53 S.W. 62

PARLIN & ORENDORFF CO. et al. v. HANSON.¹

Court of Civil Appeals of Texas.

May 13, 1899.

Appeal from district court, Henderson county; W. H. Gill, Judge.

Action by Carlton Hanson against K. Richardson, sheriff of Henderson county, and the Parlin & Orendorff Company, and others, sureties on an indemnity bond in his favor. From a judgment in favor of appellee, and a judgment over in favor of defendant Richardson against his indemnitors, defendants appeal. Affirmed.

Eustace, Bishop & McDonald, McCormick & Spence, and Paul Jones, for appellants. Richardson, Watkins & Miller, for appellee.

BOOKHOUT, J.

The suit was instituted by appellee against K. Richardson, sheriff of Henderson county, E. M. Browder, and the Parlin & Orendorff Company, appellants, and against some of the other appellants herein, as sureties on the official bond of Richardson, sheriff, for a conversion of personal property alleged to have been seized by said Richardson, sheriff, under a writ of attachment. Appellant Richardson brought in the appellants not above referred to as sureties on an indemnity bond given before the levy of attachment. Judgment was rendered on September 21, 1898, in favor of the appellee, for $837.90, with interest at 6 per cent. per annum and costs, and judgment over in favor of appellant Richardson against his indemnitors in the same amount. The case was tried before the court without a jury. From this judgment an appeal has been duly prosecuted to this court.

The appellants' first and second assignments of error complain of the action of the court in overruling defendants' general and special demurrers to the petition. The petition charges that the goods and merchandise alleged to have been converted, and for which it seeks to recover damages, were seized by the defendant K. Richardson while acting in the capacity of sheriff of Henderson county, and by virtue of a certain writ of attachment then in his hands. It charges that such seizure was unlawful. It further charges that plaintiff was the lawful owner and holder of the goods, and in lawful possession thereof, at the time of the levy. The objection was made that the petition did not show who was the defendant in said writ of attachment, or allege that it was not against the plaintiff, or show that the writ was void or oppressively levied. We are not prepared to say that the petition was insufficient when tested by a general demurrer. It was subject to a special exception, and the special exception of defendants should have been sustained. In view of the allegations contained in the defendants' answer, the ruling of the court upon these exceptions becomes unimportant. The answer specially alleged the indebtedness of one J. T. Collins to the defendant the Parlin & Orendorff Company, and the institution of suit by said company against said Collins, and the suing out of a writ of attachment in said cause against J. T. Collins, and the seizure by the sheriff of the goods set out in the petition by virtue of said writ. The answer further set up the chattel mortgage executed by Collins to plaintiff, Hanson, as trustee, and that plaintiff has no claim to said goods, except by virtue of said chattel mortgage, and that said mortgage was made to hinder, delay, and defraud the creditors of said Collins, and was void, and that the property levied upon was subject to Collins' debts. If one party expressly aver a material fact omitted on the other side, the omission is cured. Boettler v. Tendick, 73 Tex. 488, 11 S. W. 497; Grimes v. Hagood, 19 Tex. 246; Hill v. George, 5 Tex. 87. The allegations in the answer cured the omission in the petition, and the failure of the court to sustain the exceptions of defendants presents no sufficient ground for reversing the judgment.

Appellants' third assignment of error complains of the action of the court in admitting in evidence the chattel mortgage executed by J. T. Collins to plaintiff, Carlton Hanson, because there was a variance between the allegations of plaintiff's petition and the proof offered. The allegations of the petition were that plaintiff was the lawful owner and holder of the goods, and in lawful possession of the same. The instrument offered was a chattel mortgage conveying to plaintiff the goods in trust, to be by him sold, and the proceeds by him paid to the creditors therein named. By virtue of this instrument the plaintiff took possession, and was in possession when the writ was levied. We think the proof was admissible under these allegations. Schneider-Davis Co. v. Brown (Tex. Civ. App.) 46 S. W. 108; Schmick v. Bateman, 77 Tex. 326, 14 S. W. 22; Rains v. Herring, 68 Tex. 468, 5 S. W. 369. But, if we are mistaken in this, then, the defendants having set up the chattel mortgage, and made a copy of the same a part of their answer, and alleged that it was only by virtue of said instrument that plaintiff had any claim or right to the possession of said goods, these allegations, taken in connection with those contained in plaintiff's petition, authorized the admission of the evidence complained of. Hill v. George, supra.

Appellants' fourth assignment of error complains of the action of the court in admitting in evidence the chattel mortgage from J. T. Collins to plaintiff, Carlton Hanson, over defendants' objection that said instrument on its face showed that it was void and fraudulent in law as to the defendants, in that the effect thereof was to hinder, delay, and defraud the creditors of said Collins, and especially the defendant the Parlin & Orendorff Company, plaintiffs in the writ of attachment under which the goods were seized. The chattel mortgage authorized the trustee, Hanson, to take possession of the goods, "and to sell the same as speedily as he can at reasonable...