Schneider-Davis Co. v. Brown

• Decision Date: 09 April 1898
• Citation: 46 S.W. 108
• Court: Texas Court of Appeals
• Parties: SCHNEIDER-DAVIS CO. et al. v. BROWN.<SMALL><SUP>1</SUP></SMALL>

Page 108

46 S.W. 108

SCHNEIDER-DAVIS CO. et al. v. BROWN.¹

Court of Civil Appeals of Texas.

April 9, 1898.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Action by E. Y. Brown against the Schneider-Davis Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Lancaster, Beall & Gammon and Wm. P. Ellison, for appellants. B. F. Marchbanks and M. B. Templeton, for appellee.

FINLEY, C. J.

On November 16, 1895, plaintiff below, E. Y. Brown, filed suit in the district court of Ellis county, Tex., against appellants, in ordinary form of trespass, alleging, among other things, that he, on April 30, 1895, was the owner and in possession of a certain stock of goods then and there of the reasonable cash value of $1,300; that on said date defendant McCue, sheriff of Ellis county, under a writ of attachment issued out of the county court of said county, wherein the Schneider-Davis Company was plaintiff, and one D. A. Kemper was defendant, and acting under the direction of the said Schneider-Davis Company, wrongfully seized and took possession of said goods, to his damage $1,300. On June 12, 1897, plaintiff filed his first-amended original petition, wherein, besides attaching a schedule of the goods, which was not attached to the original petition, he repeats his averments above of the original petition, and adds that he was in possession of the goods under and by virtue of a chattel mortgage, executed by D. A. Kemper to him, as trustee; that the creditors named in said chattel mortgage had duly accepted the terms thereof, except the Schneider-Davis Company, before the seizure of the said goods; and that the debts of said creditors still remained unpaid. On December 24, 1896, defendants filed their first-amended original answer, with certain exhibits. On June 12, 1897, defendants filed their second-amended original answer, and, among other things, excepted specially to plaintiff's first-amended original petition, because it appeared therefrom that plaintiff had abandoned his original cause of action, and now sued in a representative capacity, and it appeared that the said cause of action, in such capacity, was barred by limitation; and, having filed a general denial, defendants specially denied that said plaintiff, at the time of the seizure, was the owner of the goods, and alleged that said deed of trust was fraudulent, and designed as a means whereby said D. A. Kemper might hinder, delay, and defraud his creditors. (2) Defendants specially denied the indebtedness as stated, mentioned in said deed of trust, as due to Annie Kemper; also the indebtedness of A. Moore; and further denied that any of the creditors named in said deed of trust had accepted the same at the time of the seizure of the goods. A copy of said deed of trust was attached to defendants' original answer. (3) Defendants further alleged that on April 25, 1895, D. A. Kemper was indebted to defendant the Schneider-Davis Company in the sum of $571.68, and on April 29, 1895, it entered suit for said sum in the county court of Ellis county, and next day levied an attachment upon the goods claimed by plaintiff as the goods of D. A. Kemper; that in May, 1895, said goods were, by order of the court, sold for the sum of $567.50; that on July 10, 1895, judgment was duly rendered in said suit against D. A. Kemper, and said attachment lien foreclosed, and out of the proceeds of the sale of said goods all of the same was applied to pay the judgment aforesaid and costs, except the $114.55 balance thereof, which was paid to E. Y. Brown, plaintiff. (4) That by accepting said balance said plaintiff had ratified and confirmed said seizure, and was estopped to now complain. (5) That on April 29, 1895, the Schneider-Davis Company applied for and sued out a writ of garnishment, in said suit aforesaid, against E. Y. Brown, plaintiff, and the said writ was duly served on April 30, 1895. (6) That thereafter, on July 10, 1895, in said garnishment suit, judgment was rendered in favor of the Schneider-Davis Company and against E. Y. Brown, plaintiff, for the amount of the judgment against D. A. Kemper. (7) That nothing has been paid on either of said judgments, except the proceeds of the sale of the goods as above mentioned, and that, if plaintiff should recover herein, then the same were subsisting in full force and unsatisfied. (8) That both plaintiff and D. A. Kemper were insolvent, and defendants prayed that, if plaintiff should recover, then that the said judgments be allowed as an offset and credit herein. (9) That plaintiff was precluded, by the judgment in garnishment against him above mentioned, from asserting that the property levied on was not the property of D. A. Kemper at the time of the attachment and garnishment, and that the judgment in said cause constitutes an adjudication of the identical cause of action alleged in plaintiff's petition.

On June 12, 1897, the cause came on for trial before the court without a jury, and the court overruled defendants' general and special exceptions, to which defendants excepted; and, having heard the evidence and argument of counsel, rendered judgment for the plaintiff against defendants for the sum of $1,175, with interest and all costs, less a credit of $114.50. From this judgment the defendants have appealed.

The trial judge filed the following conclusions of fact and law:

"Conclusions of Fact.

"(1) D. A. Kemper, being insolvent on April 25, 1895, executed a chattel mortgage to secure certain creditors, conveying his certain stock of goods then located in Ennis, Ellis county, Tex., to E. Y. Brown, as trustee, and at once placed said trustee in actual possession of said goods. A copy of said chattel mortgage, which was at once duly registered in the county clerk's office of Ellis county, Tex., is attached to defendants' answer and made a part thereof.

"(2) That on April 29, 1895, Schneider-Davis Company, in the county court of Ellis county, Tex., after having made proper affidavit and bond, sued out a writ of attachment against D. A. Kemper; also a writ of garnishment in the same suit against E. Y. Brown; that said Schneider-Davis Company placed both of the said writs in the hands of J. W. McCue, sheriff of Ellis county, who on the 30th day of April, 1895, executed them at the request and direction of Schneider-Davis Company, by first serving the writ of garnishment upon E. Y. Brown, and immediately afterwards, on the same day, said McCue executed the writ of attachment by seizing and levying the writ of attachment on the entire stock of goods (except such as were held on commission) then in the possession of E. Y. Brown by virtue of said chattel mortgage, except about $30 worth of the said goods which had been sold by the trustee before the levy. Said sheriff, at the instance of said ...