Spencer v. James

Citation31 S.W. 540
PartiesSPENCER v. JAMES et al.
Decision Date26 April 1895
CourtCourt of Appeals of Texas

Appeal from district court, Wilbarger county; G. A. Brown, Judge.

Action by J. C. James against W. J. Spencer and another. From a judgment for plaintiff, defendant Spencer appeals. Affirmed.

M. B. Templeton and Smith & Basham, for appellant. H. C. Thompson and Stephens, Huff & Camp, for appellees.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

The appellee J. C. James, on May 2, 1892, brought this suit, No. 466, against the State National Bank and against W. J. Spencer, a resident of Ellis county, Tex., and appellant herein. The allegations of the plaintiff's petition are to the following purport: On and before December 18, 1890, B. P. McFarlin & Co., a firm composed of B. P. McFarlin and R. M. McFarlin, were indebted to T. M. James & Sons, of Kansas City, Mo. On this indebtedness T. M. James & Sons recovered on August 22, 1891, a judgment against B. P. McFarlin & Co. in the sum of $768.81. On December 18, 1890, T. M. James & Sons caused to be issued and served a writ of garnishment upon the State National Bank of Vernon, and on the 14th day of January, 1892, obtained in this garnishment proceeding a judgment against the bank, finding that R. M. McFarlin owned 10 shares of the capital stock of the bank, represented by certificate No. 73, standing on the books of the bank in the name of R. S. Kelly. By virtue of the judgment thus obtained, and of a writ of execution issued in accordance therewith, the 10 shares described were on the 22d day of March, 1892, duly sold, and title thereby transferred to J. C. James as the purchaser. On demand made by James for the issuance to him of its certificate of stock in lieu of certificate No. 73, the bank refused to recognize his title to the stock. The defendant W. J. Spencer was in possession of the stock, claiming to be the owner, by virtue of an indorsement thereof to him, which claim was asserted for the purpose of aiding R. M. McFarlin in covering up his property, and of defeating the plaintiff in the collection of his debt, and was acquired after the issuance and service of the writ of garnishment upon the bank, and with full knowledge thereof. Spencer was seeking the issuance by the bank of a certificate of stock to him, and the bank would, in violation of the judgment of the court, so issue its certificate of stock to Spencer, unless restrained. If the certificate should be thus issued to Spencer, he would be enabled to transfer the same, and thus defeat the title of the plaintiff to the stock, which is of the value of $1,000. The bank refused to recognize plaintiff's right to the stock. The petition concluded with a prayer for a writ of injunction restraining the bank from issuing a certificate for the stock named to any person other than the plaintiff, and restraining W. J. Spencer from demanding the stock, and from transferring certificate No. 73, and requiring him to hold the certificate until final disposition by the court, and that the bank be required by mandatory writ of injunction to issue a certificate for the stock to the plaintiff. On July 29, 1892, the defendant Spencer filed an answer asserting his privilege to be sued in the county of his residence, and excepting to the jurisdiction of the district court of Wilbarger county over his person. He denied any equity in the bill, and, by way of cross bill against his codefendant, the bank, he prayed judgment for the value of the stock, as for conversion, alleging ownership in himself and an adjudication of the title to the stock by the district court of Ellis county in a case to which he and the bank were parties. On November 21, 1892, the appellant, Spencer, filed his cause No. 557 in the district court of Wilbarger county against the State National Bank alone. He alleged his ownership of the stock in controversy, a demand by him of the bank for the issuance of a new certificate, and a refusal to comply with this demand. He further alleged an adjudication on March 17, 1892, by the district court of Ellis county, of the ownership of the stock, as between himself and the defendant bank. He prayed for a judgment against the bank for the value of the stock, as for conversion. In each of these causes the defendant bank filed an answer, averring that Spencer was not the owner of the stock; that he had no interest in it; that it was willing and ready to issue a certificate for the stock in controversy to the person to whom it belonged; that James and Spencer were both claiming it; that both had judgment against the bank; and it prayed that the matter be adjudicated between the two claimants. In its original answer, filed January 31, 1893, in the cause No. 557, it prayed that the two cases should be consolidated, alleging that the title to the identical stock was in controversy in each case, and that the evidence with reference to the issue was substantially the same. The cause was called for trial at a regular term. In the absence of the appellant and of his counsel, the prayer for consolidation was repeated in a motion to that effect presented by the bank. The motion was granted, the trial had, and a judgment rendered on August 10, 1893, for the plaintiff, in accordance with the prayer of his petition. The court filed conclusions of fact, reciting in effect the judgment recovered by James & Sons against McFarlin & Co., the issuance of the execution, and the levy thereon, and the sale of the stock to the plaintiff, J. C. James, and the consequent transfer to him by the sheriff, as averred in his petition. It further found the refusal by the bank on his request to issue a certificate for the 10 shares of stock in controversy to him, and its refusal to recognize in any manner the plaintiff as one of its shareholders, on the ground that W. J. Spencer was claiming the stock in controversy. It further found, reciting the consolidation of the causes on the motion of the defendant bank, that on the issues contained in the pleadings of the plaintiff, James, and of the defendant bank, the defendant Spencer or his attorney not being present, and upon the evidence adduced on the trial, at the date of the issuance and service of the writ of garnishment, as already...

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9 cases
  • Knight v. Waggoner
    • United States
    • Texas Court of Appeals
    • April 30, 1919
    ...under our practice, if consolidation had been ordered by the trial judge, his action should have been sustained. Spencer v. James, 10 Tex. Civ. App. 327, 31 S. W. 540, 43 S. W. 556; Lewis v. Reynolds, 145 S. W. 1072; Tiefel Bros. & Winn v. Maxwell, 154 S. W. 319; Young v. Gray, 65 Tex. 99; ......
  • McCormick v. Jester
    • United States
    • Texas Court of Appeals
    • December 5, 1908
    ...W. Civ. Cas. Ct. App. § 1311; Railway Co. v. Hays, 2 Willson, Civ. Cas. Ct. App. § 390; Raymond v. Cook, 31 Tex. 382; Spencer v. James, 10 Tex. Civ. App. 332, 31 S. W. 540, 43 S. W. 556; Johnston v. Mfg. Co. (Tex. Civ. App.) 24 S. W. Error is assigned to the court's action in holding that a......
  • International Travelers' Ass'n v. Votaw
    • United States
    • Texas Court of Appeals
    • June 18, 1917
    ...the attitude of having waived the right it had to insist upon its plea (Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224; Spencer v. James, 10 Tex. Civ. App. 327, 31 S. W. 540, 43 S. W. 556; Watson v. Mirike, 25 Tex. Civ. App. 527, 61 S. W. 538; Creswell Cattle Co. v. Waldstein, 28 S. W. 260; Bo......
  • Pesch v. First City Bank of Dallas
    • United States
    • U.S. District Court — Northern District of Texas
    • June 27, 1986
    ...the transfer of stock shares because the loss of stock shares represents irreparable injury to a stockholder. In Spencer v. James, 10 Tex.Civ.App. 327, 31 S.W. 540, 542 (1895, no writ), the court of civil appeals held that money damages would not be an adequate remedy at law since the owner......
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