Sawyer v. J. F. Wieser & Co.

• Decision Date: 30 November 1904
• Citation: 84 S.W. 1101
• Parties: SAWYER et al. v. J. F. WIESER & CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 1101

SAWYER et al. v. J. F. WIESER & CO.^*

Court of Civil Appeals of Texas.

November 30, 1904.

Appeal from Hamilton County Court; J. W. Warren, Judge.

Action by J. F. Wieser & Co. against L. M. Sawyer and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Davis & Cocke and A. R. Eidson, for appellants. J. Van Steenwyk, for appellees.

FISHER, C. J.

This is a suit by Wieser & Co. against L. M. Sawyer and M. A. Cooper & Co., naming the members of the firm and the Provident National Bank. The bank is no longer a party, as it was dismissed from the case. The purpose of the suit was to hold Sawyer and Cooper & Co. for the sum of $300, which the petition alleged the appellants, by a fraudulent conspiracy, had deprived them of. It is averred that Wieser & Co., among others, were preferred creditors in a deed of trust executed by one J. E. Kline, wherein the appellant Sawyer was named as trustee, and that the stock of goods, wares, and merchandise of Kline was transferred to Sawyer for the benefit of the appellees and the other preferred creditors; that after this deed of trust had been executed and the goods delivered to Sawyer, Cooper & Co., by attachment process, seized and levied upon the goods, and that Cooper & Co. claimed at the time to be creditors of Kline; that the goods were appropriated by Cooper & Co. under the attachment process, and thereafter Sawyer, for the benefit of the appellees, Wieser & Co., and the other preferred creditors, brought suit in the district court of Hamilton county against Cooper & Co. and the members of the firm for the value of the goods so appropriated by them, and recovered a judgment against them for the sum of $1,700, with interest thereon at the rate of 6 per cent. per annum from the 10th day of December, 1895; that said judgment was appealed from by Cooper & Co., and was affirmed; that thereafter the appellants Sawyer and Cooper & Co. Fraudulently conspired together for the purpose of defeating the purposes of the judgment and the rights of the plaintiff therein, and that in accordance with such fraudulent and corrupt conspiracy Sawyer, at the request of Cooper & Co., went to the city of Waco, and received from Cooper & Co. payment of the judgment before recovered against them, and that in furtherance of the conspiracy a garnishment process was sued out by Cooper & Co. against Sawyer, claiming that he was indebted, or had property or effects in his hands belonging, to Kline; and that in furtherance of the conspiracy and the purpose to defraud the plaintiffs, the attorneys of Sawyer were allowed to prepare his answer in the garnishment suit, which answer, it is alleged, was favorable to Cooper & Co., and one of the purposes of the conspiracy was to bring the garnishment suit in Waco, in a county other than the residence of Sawyer and the plaintiffs, which was Hamilton county, for the purpose of requiring the plaintiff and the other preferred creditors to go away from their home and to journey to McLennan county in order to litigate whatever rights they might have to the fund garnished; that defendants Sawyer and Cooper fraudulently caused the judgment in the district court of Hamilton county previously recovered against Cooper to be declared satisfied; that the plaintiffs demanded of Sawyer their pro rata share of the amount claimed to have been paid him by Cooper under the judgment in the district court of Hamilton county in accordance with the terms of that judgment and the deed of trust; that Sawyer is insolvent, and that a judgment against him would be worthless; that thereafter the plaintiff, with other preferred creditors, was cited to appear in the district court of McLennan county, where the garnishment proceedings were then pending, in which court the plaintiff, with the other preferred creditors, presented a plea of privilege to be sued in Hamilton county, the county of their residence, which plea the district court of McLennan county sustained. Plaintiffs' petition then concludes with a prayer that they have judgment for their debt—that is, the sum of $300, with interest; and we understand this to mean that the purpose and object of the plaintiffs' case was merely to recover the proportion of a sum which, as preferred creditors under the deed of trust, they were entitled to by reason of the judgment of Sawyer against Cooper & Co., which amount had been paid by Cooper & Co. to Sawyer, but which, by reason of the conspiracy alleged between Sawyer and Cooper & Co., the effect was to defeat the plaintiffs' claim and the other preferred creditors under the deed of trust. The defendant pleaded the judgment rendered by the district court of McLennan county in the garnishment suit as res adjudicata, and also Cooper...