W. Arnold & Co. v. Hockney
| Decision Date | 01 January 1879 |
| Citation | 51 Tex. 46 |
| Court | Texas Supreme Court |
| Parties | W. ARNOLD & CO. v. D. C. HOCKNEY & BRO. |
OPINION TEXT STARTS HERE
APPEAL from Freestone. Tried below before the Hon. D. M. Prendergast.
June 24, 1875, D. C. Hockney & Brother brought suit on three promissory notes against William Arnold & Co. in the District Court of Freestone county. An attachment was obtained, and was levied on a large amount of property of the defendants.
The defendants pleaded general demurrer and general denial, and, in reconvention, that the attachment was wrongfully and maliciously sued out, and for damages.
The case was continued, (at whose instance it does not appear,) until April 5, 1878, when an application for continuance was made, supported by the affidavit of the attorney for defendants. The affidavit, in form, was as for a second continuance.
The defendants expected to prove by the absent witnesses that they (defendants) were not about to transfer their property for the purpose of defrauding their creditors, as alleged in the affidavit for attachment by one of the plaintiffs; that plaintiffs had no grounds for attaching the property of defendants, but the attachment was sued out and caused to be levied through malice and for the purpose of injuring defendants' property, and vexing and harassing them without any probable cause; and, further, that the property levied on was worth $17,000 at the date of levy; (the debt was about $1,700;) * * * “that they have never tried to avoid paying their just debts, but have always been willing and prompt.” One of the defendants was also absent, from an accidental injury, rendering his attendance impossible, by whom (the application stated) it was expected to prove, in addition, “that he had proposed to one of the plaintiffs, at or about the filing of the suit, before the attachment was levied, that he might take any of his (defendants') property at a reduced price in satisfaction of said claim, or that if they (plaintiffs) or either of them would assist him in selling, or could find a purchaser for any of his property, that he would sell, and they should have the proceeds of such sale.”
The application was overruled. The bill of exceptions does not show whether it was a first or second application for continuance.
On the refusal of the motion for continuance, the defendants withdrew their plea in reconvention. The court tried the case without a jury, and rendered judgment for plaintiffs for the amount claimed, and a sale of the property attached...
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Carmichael v. Williams
...the fact upon which he relies to show the error. Laird v. State, 15 Tex. 317; Lindly v. Lindly, 102 Tex. 143, 113 S. W. 750; Arnold v. Hockney Bros. 51 Tex. 46.' Wiggins v. Bank (Tex. Civ. App.) 175 S. W. "`The presumption is in favor of the judgment of the court, unless the error is disclo......
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Wiggins v. First Nat. Bank
...the fact upon which he relies to show the error. Laird v. State, 15 Tex. 317; Lindly v. Lindly, 102 Tex. 143, 113 S. W. 750; Arnold v. Hockney Bros., 51 Tex. 46. Judgments reciting, as here, an appearance on the part of defendants and a withdrawal by them of their answer are in the nature o......
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Halliburton v. State
...and in no other part of the record, that such application was the first sought by appellant. This should have been done. Arnold v. Hockney, 51 Tex. 46; Attaway v. State. 31 Tex. Cr. R. 475, 20 S. W. 925. Again, the statements in regard to the expected facts are too general, and more in the ......
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Land v. State
...that the defendant should have shown by his bill of exceptions that this was his first application. This he failed to do. See Arnold v. Hockney, 51 Tex. 46. In this regard there is a difference between first and second applications for continuance, it being incumbent for defendant to show o......