Smith v. Frost

• Decision Date: 10 October 1923
• Docket Number: (No. 461-3266.)
• Citation: 254 S.W. 926
• Parties: SMITH et al. v. FROST.
• Court: Texas Supreme Court

Page 926

254 S.W. 926

SMITH et al. v. FROST.

(No. 461-3266.)

Commission of Appeals of Texas, Section A.

October 10, 1923.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by W. H. Smith and others against C. E. Frost. Judgment for plaintiffs was reversed by the Court of Civil Appeals (207 S. W. 392), and they bring error. Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

R. H. Kingsbury, Nat Harris, Boggess & Naman, F. M. Fitzpatrick, W. L. Eason, and W. B. Carrington, all of Waco, for plaintiffs in error.

Marshall Surratt, of Waco, for defendant in error.

BISHOP, J.

The plaintiffs in error, W. H. Smith, L. Fred, Sidney Herz, the Goldstein-Migel Company, Sanger Bros., the Texas Power & Light Company, and Alex Fitzpatrick, having caused several writs of execution and attachment sued out by them against Clayton, Gordon, and Hugh Boggs, composing the firm of Boggs Bros., to be levied on an automobile, the defendant in error, C. E. Frost, delivered to the officer, who levied said writs, his oath in writing, claiming to be the owner of said property, and the officer having assessed the value of same at $1,500, defendant in error executed and delivered to him his bond in the sum of $3,000, payable to all the plaintiffs in error in the several writs. Whereupon the officer delivered to him said automobile, and filed the affidavit and bond in the district court of McLennan county, Nineteenth judicial district.

Thereafter plaintiffs in error filed in the district court their original petitions, stating the grounds on which they sought to enforce their execution and attachment liens on the automobile, and alleged that same was not the property of defendant in error at the times of levies, but was the property of and owned by Boggs Bros., and in their possession, and was subject to foreclosure and sale, and that said automobile was of the value of $2,500. They asked judgment against defendant in error, and surety on his bond. Defendant in error answered by general denial and specifically that at the time of the levy he was the owner of and in possession of said automobile, and that same was not subject to either execution or attachment for any debt due by Boggs Bros. He further alleged that Boggs Bros. were his employees and agents, and that he had furnished them the car to enable them to better fulfill their duties to him as agents and employees, and that they had no title, claim, or interest in said car in their own right.

Issue having been thus joined, the court determined and ruled that the burden of proof was upon defendant in error to establish his claim to the property, and thereafter, before the trial began, defendant in error filed an admission of the plaintiffs' cause of action under rule No. 31 (142 S. W. xx) for district and county courts, in language as follows:

"Now comes the defendant and admits that plaintiffs and each of them have a good cause of action as set forth in their petition, except so far as it may be defeated in whole or in part by the facts of the answer constituting good defense which may be established on the trial."

This admission was duly entered of record, and defendant in error was given the right to open and conclude in introducing the evidence and in the argument.

The case was tried before a jury. The defendant in error first introduced his evidence going to establish his claim and ownership of the car. Plaintiffs in error then introduced their evidence, consisting of a number of witnesses, who testified that the reputation of Boggs Bros. for truth and veracity was bad. Thereupon the defendant in error presented to the court his motion, asking that the jury be instructed to return a verdict for defendant, and plaintiffs in error asked the court to instruct the verdict for plaintiffs. The court overruled the motion of defendant in error, and charged the jury to return a verdict for plaintiffs, to which charge defendant in error objected in writing before same was read to the jury. Under this charge a verdict was returned as directed, and judgment rendered and entered in accordance therewith. The case was appealed to the Court of Civil Appeals by defendant in error, resulting in the judgment of ...