Walker-Smith Co. v. Coker, 2389.

• Decision Date: 03 December 1943
• Docket Number: No. 2389.,2389.
• Parties: WALKER-SMITH CO. v. COKER et al.
• Court: Texas Court of Appeals

176 S.W.2d 1002

WALKER-SMITH CO. v. COKER et al.

No. 2389.

Court of Civil Appeals of Texas. Eastland.

December 3, 1943.

Rehearing Denied January 14, 1944.

Appeal from District Court, Comanche County; R. B. Cross, Judge.

Action by Walker-Smith Company against C. C. Coker, wherein plaintiff obtained a judgment against defendant and an execution was levied upon merchandise and fixtures in a grocery store operated by defendant and his wife, Georgia Coker. Defendants claimed the levies were void because the judgment was dormant and further alleged that the property levied upon was the separate property of Georgia Coker and filed a cross-action for damages. From a judgment denying recovery on the cross-action for damages but awarding the merchandise and fixtures to Georgia Coker, plaintiff appeals.

Judgment affirmed in part and in part reversed and judgment rendered for plaintiff.

Darroch & McCartney, E. M. Davis, and Wilkinson, Johnson, Griffin & Bohannon, all of Brownwood, for appellant.

Oscar Callaway and Y. W. Holmes, both of Comanche, for appellee.

GRISSOM, Justice.

Walker-Smith Company obtained a judgment against C. C. Coker in Brown County on April 9, 1930. On May 19, 1930, an execution was issued to Brown County and returned by the sheriff on the same day; the return showed that no property of C. C. Coker subject to execution was found in said county. On May 4, 1940, another execution was issued to Brown County and returned on May 6th with a like notation. On May 2, 1942, an execution was issued to Comanche County and levied upon the merchandise in a grocery store operated by the Cokers and known as the "City Grocery" in Comanche. Two days later Mrs. Georgia Coker took possession of said merchandise under her claimant's oath and bond. Another execution was issued on May 9th and levied on the fixtures. The fixtures were delivered to Mrs. Coker under a different affidavit and bond. The property was claimed by Mrs. Coker as her separate property.

Under the direction of the court plaintiff, Walker-Smith, joined issue with the defendants, the Cokers, alleged the facts heretofore stated, and that the property was community property and subject to plaintiff's writs of execution. (Art. 7411). Plaintiff further alleged, among other things, that if said property had been purchased by Mrs. Georgia Coker and if it became her separate property, that thereafter the business was operated by C. C. Coker; that the stock of groceries had been replenished from time to time out of funds obtained from the sale of said merchandise in the operation of said business from the original investment and profits arising from the sale of merchandise; that all of said funds had been commingled without regard to the original investment and profits from the business in such manner that the property had become community property; that the Cokers had no other means of livelihood than the income from said business; that they had drawn money from said business to support themselves and their children; that a large portion of said goods had been purchased on credit; that C. C. Coker in the operation and management of said business had obligated himself to pay therefor; that no attempt had been made to keep a separate account of the community funds and separate funds of Mrs. Coker; that said property became community and subject to the payment of the debts of C. C. Coker.

Defendants answered, among other things, that the levies were unlawful because the judgment was dormant because the writs of execution were issued more than ten years after the "due issuance" of the last preceding execution on May 19, 1930; that "the pretended issuance of an execution on May 6, 1940, was not in fact the issuance of an execution; instead it was a mere formality, without intention of placing it in the hands of the Sheriff for collection, and which was never placed in his hands for such purpose and no attempt was ever made by the Sheriff to collect the same. Instead, the same was placed in his hands by the Plaintiff with instructions to him, in substance, to return the same immediately Nulla Bona, and such was then and there done by the Sheriff, and no attempt was made to collect the same. They show that the Plaintiff then knew C. C. Coker did not live in Brown County, and had no property there, and that if he had any property, it was in Comanche County."

Defendants further alleged that the property levied on was the separate property of Mrs. Coker; that she married C. C. Coker in 1941; that he was then employed by M. O. Coker and Mrs. Kendrick, who then owned the City Grocery; that on July 31, 1941, Mrs. Coker purchased the stock of groceries and fixtures and paid therefor with her separate means; that the business was continued under the management of C. C. Coker; that after the purchase by Mrs. Coker defendants had "made no additions to the business derived from the business income, it taking the entire proceeds of said business to pay the operating expenses and losses incident." Defendants also filed a cross-action for damages.

The cause was submitted to a jury and the jury found, among other things, that the stock of groceries was the separate property of Mrs. Coker and was not community property. The jury found that the Cokers had suffered no damage as a result of the levy of the writs of execution.

Defendants' requested issue number 1 is shown only by the judgment. The judgment recites that it was submitted to the jury but not answered. In the judgment the court found that the jury's failure to answer said issue was immaterial. The issue, as stated in the judgment, is: "Do you find, from a preponderance of the evidence that the Walker-Smith Company did not act in good faith when they sued out the writ of execution of date May 4th, 1940, on their judgment in cause No. 2805 County Court of Brown County and did not act in good faith in placing same in the hands of the Sheriff of Brown County with not with the Bona Fide intent that they should try to collect the same from C. C. Coker." (Italics ours. We assume that by the italicized words was meant "without" and consider the issue as if it were so written.)

The judgment decreed that plaintiff take nothing and that Mrs. Coker recover all right, title and interest in the stock of groceries and fixtures levied on by plaintiff, and that the Cokers take nothing against plaintiff on their cross-action for damages. Plaintiff has appealed.

Plaintiff presents three points. The first is: "The uncontradicted testimony of Defendants proved that, out of her separate funds, Defendant, Mrs. Georgia Coker, purchased and paid for the business in Comanche, Texas, known as "The City Grocery" on July 31, 1941, after her marriage to Defendant, C. C. Coker, and thereafter, until the execution in this case was levied on the stock of merchandise on May 2, 1942, defendants operated said business under the assumed name of `The City Grocery'. That they purchased merchandise for cash and on credit, and daily sold said merchandise for cash and on credit, using the proceeds and profits from such sales for the purpose of replenishing said stock from time to time as needed, and to support themselves and their family. All profits from the sale of said merchandise under the law were community property of defendants. Since said profits were used, invested and reinvested from day to day in purchasing more merchandise, they were thereby commingled with the original invested capital in said merchandise, and the burden of proving that particular items and portions of said merchandise, if any, levied upon were paid for by her out of her original invested capital was upon Defendant, Mrs. Georgia Coker. Having failed to prove the particular portions or items, or that any portion or any items of said merchandise so levied upon were paid for out of her said original invested capital, separate and apart from that portion of those items of merchandise which were paid for out of the turn-over, or profits from the original stock of merchandise, all of said merchandise so levied upon thereby became and was the community property of Defendants, liable for the payment of Appellant's judgment against Defendant, C. C. Coker, and an instructed verdict in Plaintiff's favor was proper. It was, therefore, the duty of the trial court, as to said merchandise so levied upon and here involved, since an instructed verdict was proper, to enter judgment non obstante veredicto in favor of Appellant, upon its motion timely filed, and the trial court's failure to so enter such judgment upon such motion was error, entitling Appellant to a judgment here, reversing and rendering this case."

Plaintiff's motion for judgment notwithstanding the verdict, relative to the community character of the stock of groceries only, was overruled.

C. C. Coker testified in part as follows:

"I managed the business. Mrs. Coker stays in there too, and also looks after the household affairs. I stay in the store all the time.

"We bought groceries on credit from most of the wholesale people. I did the buying. We bought on open account. We ran the business that way all the time.

"We did an average Saturday's business of between four and five hundred dollars, and an average monthly business of around two thousand dollars; the year around.

"We did not take an inventory when my wife bought into the business.

"When I pay for groceries, my wife does not sell more property to pay for them. She sells the goods and buys more goods.

"My wife goes ahead just like any other business, checks on the money, sells goods, gets some money and buys some more goods, and just automatically keeps the business going like most businesses run on the credit. My wife takes the proceeds of the business, deposits it in the bank; pays the expenses out of that; buys new goods out of that fund.

"She would sell, say, five hundred dollars worth of goods, and pay for what she bought, and pay the expenses...