Pinkard v. Willis

• Decision Date: 18 May 1900
• Citation: 57 S.W. 891
• Court: Texas Court of Appeals
• Parties: PINKARD et al. v. WILLIS et al.

57 S.W. 891

PINKARD et al. v. WILLIS et al.

Court of Civil Appeals of Texas.

May 18, 1900.

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

Action by W. T. Pinkard, as temporary administrator of the estate of E. W. Pinkard, deceased, and others, against P. J. Willis & Bro., for trial of right of property in certain goods levied on under execution. From a judgment for defendants, plaintiffs appeal. Affirmed.

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

FLY, J.

This was a suit originally brought by W. T. Pinkard, as temporary administrator of the estate of E. W. Pinkard, deceased, for trial of right of property in certain goods levied on at the instance of appellees. From a judgment in favor of claimants on the first trial, the cause was appealed to this court, and was here reversed and rendered in favor of the plaintiffs in execution against W. T. Pinkard and the sureties on his claimant's bond, on the ground that the undisputed evidence showed that he had no authority, as temporary administrator, to bring the suit, and the estate being in no sense a party to the proceedings, and its title not involved, plaintiffs, as against Pinkard individually and his sureties, were entitled to judgment, under the terms of the statute, for the value of the goods. The record, however, did not disclose the value of the goods, and the cause was remanded, that the value might be ascertained, and judgment rendered therefor. 52 S. W. 626. The W. T. Pinkard who sued as temporary administrator was also the execution defendant. Prior to the last trial, from which comes this appeal, W. T. Pinkard qualified as permanent administrator of the estate of E. W. Pinkard, deceased, and sought to intervene and establish the right of the estate to the goods, and to obtain judgment against W. T. Pinkard and the sureties on his claimant's bond for their value. A motion to strike out this intervention was sustained by the trial court, and of that action Pinkard, as permanent administrator, here complains. W. T. Pinkard, who did not appear in his individual capacity in the first trial, sought to intervene as such in the second trial; alleging, among other things, that prior to the first trial of this cause he had been duly adjudged a bankrupt, and acquitted, among other claims, of the judgment which was the basis of plaintiffs' execution. Exceptions were sustained to all of this plea, except the portion setting up his discharge as a bar to the enforcement of any judgment against him. The sureties also answered, denying the value of the goods as alleged, and seeking to protect themselves by the discharge of Pinkard in bankruptcy. The goods were originally levied on in the hands of W. T. Pinkard prior to his qualification as temporary administrator, and the court properly held the burden of proof to be upon claimant. The goods were prima facie the property of defendant in execution, and no person being present in the case, having a right to question this prima facie title, judgment was rendered against the claimant and his sureties for their value.

There is but one assignment of error presented by the permanent administrator, but as it is neither correctly copied in the brief, nor prepared in accordance with the rules, a consideration of it at our hands is not required. It appears, however, that it presents no error. If it be conceded that an intervention is permissible in a claimant's suit, under the facts alleged, it is also true that an intervention must be timely, and will not be permitted after the issues between the original parties are practically determined. The estate is not prejudiced by the judgment herein, and has ample remedy for any injury done it by any party to this suit. The questions affecting the validity of the execution were determined on the former appeal.

The estate of E. W. Pinkard, deceased, being thus eliminated from the cause, the effect of the bankruptcy proceedings on the judgment in this cause remains to be considered. For the purposes of this question, the goods must be treated as...