Wetzel v. Simon

• Decision Date: 21 December 1894
• Citation: 28 S.W. 942
• Parties: WETZEL v. SIMON et al.
• Court: Texas Supreme Court

28 S.W. 942

WETZEL v. SIMON et al.

Supreme Court of Texas.

December 21, 1894.

Error to court of civil appeals, Third supreme judicial district.

Attachment by L. Simon & Co. against N. Wise, and Charles Wetzel interposed a claim to the attached property. From the judgment of the court of civil appeals (25 S. W. 792) modifying and affirming a judgment for plaintiffs, claimant brings error. Reversed.

Gustav Cook and S. B. McBride, for plaintiff in error. Denman & Franklin and Hutchison & Crews, for defendants in error.

GAINES, C. J.

The cases cited by counsel for appellant upon the argument settle the question of jurisdiction in this case. Erwin v. Blanks, 60 Tex. 583; Carney v. Marsalis, 77 Tex. 62, 13 S. W. 636; Betterton v. Echols, 85 Tex. 214, 20 S. W. 63. These decisions had escaped our memory when we referred the question back for argument. Since it is there held that the county court under the constitution did not have jurisdiction of a proceeding for the trial of the right of property, where the value of the property levied upon amounted to or exceeded $500, this court has jurisdiction of this case. In his affidavit the plaintiff made oath that he claimed the property in controversy as the assignee of Mrs. B. Wise; but, in his answer to the tender of issues by the attaching creditors, he asserts title as assignee of N. Wise; and it is insisted that he is concluded by his affidavit, and ought not to be permitted to claim in the latter capacity. To this proposition we do not assent. The statute merely requires that the claimant shall make oath that his "claim is made in good faith." 2 Sayles' Ann. St. art. 4822. In Hamburg v. Wood & Co., 66 Tex. 168, 18 S. W. 623, the court say: "The affidavit is not a pleading. It is to be passed upon only by the sheriff, who is not required to be learned in the law. It is a safeguard additional to the bond against frivolous delays of legal process. Its function is discharged when it has been accepted, in company with the more substantial assurance of good faith, the bond." Again, in the same case the court quote with approval the following language, as used by the supreme court of Alabama in the case of Lehman v. Warren, 53 Ala. 539: "The affidavit serves its purpose when, with a proper bond by the claimant, it arrests the action of the officer, and introduces the claim into court as a pending suit. Its statements can neither enlarge nor narrow the issue which the statute requires to be made up, and it is not probably required for any other reason than as an affirmation of good faith of the claimant in instituting the proceeding." The statute provides, in effect, that in making up the issue the pleading of the claimant shall consist of a brief statement of the nature of his claim (2 Sayles' Ann. St. art. 4834); and we think it was legitimate for the claimant in this case, in answer to the tender of issues presented by the plaintiff, to disregard the statement in the affidavit as to the source of his right, and to assert title under an assignment made by N. Wise. The important question in the case is whether or not the instrument, under which the plaintiff in error claims, operated as a valid transfer of the goods in controversy to him. B. Wise carried on at San Marcos a small mercantile business in the name of his wife, who is designated in this record as Mrs. B. Wise. Being unable to meet his debts, and believing the goods to be the property of his wife, on the 10th day of November, 1890, he caused her to execute the conveyance in question. It purports and was intended to be an assignment to the plaintiff in error of the goods in stock, the notes, accounts, etc., belonging to the assignor for the benefit of all her creditors, — a list of whom is made an exhibit to the instrument, and is therein referred to, as a part thereof. The trial court found that the effects which purported to be transferred belonged to the community estate of N. Wise and his wife. The debts were created in carrying on the business, and were the debts of the husband, as representing the community, and not the debts of the wife. We apprehend that if the original stock of goods had been the property of the wife, since the profits of the business belong to the community estate, debts contracted in the purchase of new goods would be community debts. Such being the case, we are of opinion that when the husband directed the wife to sign the conveyance in her own name, and when, in pursuance of such direction, she did so execute it, it passed the title of the property with the same effect as if he had signed it himself in his own name and had delivered it with his own hand. Trueman v. Loder, 11 Adol. & El. 589. It is clear that, if he had executed it in the name of his wife, his title would have passed by the conveyance....