Wiggins v. Fleishel

• Decision Date: 01 January 1878
• Parties: J. M. WIGGINS v. M. L. FLEISHEL ET AL.
• Court: Texas Supreme Court

50 Tex. 57

J. M. WIGGINS

v.M. L. FLEISHEL ET AL.

Supreme Court of Texas.

1878.

APPEAL from Smith. Tried below before the Hon. M. H. Bonner.

On the 22d day of January, 1877, John M. Wiggins filed a suit in the District Court of Smith county, Texas, against M. L. Fleishel and W. H. Hendrix, as the sureties of one B. K. Smith, on an injunction bond given by Smith in a suit brought by him in the District Court of Smith county, Texas, on the 4th day of February, 1874, against John H. Rowland and Wiggins. In this latter suit it was claimed that Rowland and Wiggins were partners in certain saw-mill property in Smith county; that they had dissolved their partnership; that there had been no settlement of accounts between them, and, on information, plaintiff believed that Wiggins would, on settlement, be found to have received a sufficiency of the partnership assets into his hands belonging to Rowland to satisfy and discharge a debt of one thousand dollars gold that he held against Rowland, thereby leaving the mill property unincumbered by a deed of trust that Rowland had given Wiggins to secure this debt; that Rowland was indebted to Smith by note for fifteen hundred dollars, and to secure this debt had given Smith a deed of trust on the same mill property; that Wiggins' deed of trust on the mill property was older than that of Smith, and that Wiggins, notwithstanding his debt was believed to have been fully discharged, had advertised the mill property for sale under his trust deed, and was about selling it. Smith prayed in his petition for the writ of injunction against Wiggins, his attorneys and agents, to restrain them from selling the mill property, and that Wiggins and Rowland might be compelled to account with each other, &c.

Smith obtained an order from the district judge granting the writ of injunction, gave the required bond, and by the writ of injunction restrained Wiggins from selling the property, as he had advertised to do.

Wiggins answered, but Rowland failed to do so. During the pendency of the injunction suit, B. K. Smith was adjudicated a bankrupt, in the District Court of the United States for the Western District of Texas, at Tyler, and T. R. Bonner was clected assignee of his estate in bankruptcy.

The bankruptcy of B. K. Smith was suggested to the court, and the case continued, to enable the assignee to make himself a party, if he saw proper to do so.

The assignee declined to become a party to the suit, and the case was dismissed, by agreement of the counsel of B. K. Smith and J. M. Wiggins, without prejudice to either party, in 1875.

In this suit on the injunction bond, B. K. Smith, the principal in the bond, was not made a party, because of his bankruptcy and insolvency. The sureties, M. L. Fleishel and W. H. Hendrix, are alone sued. Wiggins, in his petition, claimed that by the wrongful and malicious suing out of the writ of injunction he was damaged in the sum of fifteen hundred dollars.

The defendants, in their answer, pleaded that plaintiff, under the circumstances under which the injunction suit was dismissed, had no cause of action against them as the sureties of B. K. Smith on his injunction bond; but that if he had, he was not entitled to recover as against them any but the actual damages he may have sustained by the wrongful suing out of the writ of injunction, and that he did not sustain any such damages.

On the trial plaintiff read in evidence the papers and proceedings in the injunction suit by Smith v. Wiggins & Rowland, including the petition, with a certified copy of a deed of trust made by Rowland to Wiggins, which had been duly acknowledged and recorded, the fiat of the judge, injunction bond and writ, answer of Wiggins, and order of court dismissing the injunction suit.

Plaintiff then offered the original of the deed of trust. It not having been filed, with notice, for three days before the trial, objections were made to it, and it was excluded.

Several other efforts were made to prove the execution of the trust deed, which are sufficiently stated in the assignments of error, given hereafter.

Smith, who was witness to the deed of trust and who resided in Gregg county, had not been in attendance on the court until the day after the case was called, and had come, at the request of defendants, in compliance with a dispatch. While the objections to the introduction of the original deed of trust were being discussed, Smith left the court-room, at the time telling one of the defendants that he would leave. After the deed was excluded, Smith was called by plaintiff, but did not respond. Plaintiff then applied for a continuance, for the want of Smith's testimony. This was refused.

Plaintiff then tendered himself as witness to prove the execution of the trust deed to himself. This was objected to and objection sustained.

Depositions of Rowland, the grantor in the trust deed, taken for another purpose, and which spoke of a deed of trust made by him to the plaintiff, were offered by plaintiff; Wiggins having testified that only one deed of trust had been executed to him by Rowland. This was also excluded, on objection.

There was testimony on the condition of the mill, its value, and on the question of damages.

The jury returned a verdict for plaintiff for one dollar damages, on which judgment was rendered. Plaintiff's motion for new trial was overruled, and he appealed.

The assignments of error are--

1. Because the court erred in sustaining the defendants' objections to the introduction in evidence by plaintiff of the trust deed from John H. Rowland to John M. Wiggins, it being the deed in trust set out in hœc verba in plaintiff's bill of exceptions, marked No. 1; and because the execution of said trust deed had been proved by the solemn acknowledgment of John H. Rowland, the grantor in said trust deed, before the clerk of this court, which acknowledgment appears on said deed in trust, witnessed by the clerk's seal of this court, under the said clerk's seal of office; and because said trust deed had been admitted to record under said acknowledgment; and because it was the duty of said clerk to determine the execution of said deed in trust before he could admit it to record; and because said acknowledgment by the grantor in said deed in trust was primary or original evidence of its execution, and not secondary evidence of its execution; and because said trust deed was set out in hœc verba in plaintiff's petition, and notice given in said petition that plaintiff would read the same in evidence upon the trial of said cause, as shown in plaintiff's bill of exceptions.

2. Because the court erred in sustaining objections of defendants to the introduction in evidence by plaintiff of the answers of John H. Rowland, the grantor in said trust deed from John H. Rowland to J. M. Wiggins, to the...