Thurman v. Blankenship & Blake Co. , 79 Tex. 171 ( 1890 )

HENRY, Associate Justice.

Appellant, who was plaintiff in the ¡court below, substantially alleged.in his petition that he recovered a judgment in the District Court of Marion County against the Blankenship' & Blake Company, a corporation, and W. B. Ward and W. T. Atkins as sureties upon the claim bond of said corporation, for the sum of $478.09, with interest; that the parties against whom said judgment was rendered appealed to this court, and executed an appeal bond with J. H-. Bemis and 0.1?. Bemis as their sureties thereon; that said judgment was affirmed by this court agaihst all of said parties (who are the defendants in this suit); that the judgment of the District Court in. said cause was rendered, to be paid only after the full payment of any and all amounts which may be due to J. H. Bemis by J ones, -Edgworth & Sellers, and to W. J. Sedberry by the same firm, in their several attachments against said firm in judgment in said court, the said Bemis and Sedberry being prior attaching creditors of said Jones, Edgworth & Sellers; that the said judgments in favor of Bemis and Sedberry had been fully satisfied, and that no part of the property claimed by the Blankenship & Blake Company in the original claim suit with this plaintiff had been applied to the payment of said judgments in favor of said Bemis and Sedberry, but that the said judgment, had been fully satisfied out of the proceeds of the mill property, lumber, etc., of said Jones, Edgworth & Sellers, independently of that portion of said property claimed by the Blankenship & Blake Company in the proceeding in which the judgment aforesaid was rendered for plaintiff.

The petition charges that plaintiff’s judgment remains wholly unpaid, and that the conditions of the appeal bond have been broken.

A copy of the appeal bond was attached as an exhibit to the petition, and plaintiff prayed for a judgment for its amount, etc.

It appears from the evidence that the firm of J ones, Edgeworth & Sellers was indebted to Bemis, Sedberry, and Thurman severally, and that ■each of them had, in the order of priority in which their names are here mentioned, sued out writs of attachment and caused them to be levied upon the same property of their debtors.

The Blankenship & Blake Company made claimant’s affidavit and gave bonds to each of the attaching creditors for a trial of the right of property in a certain lot of lumber of the value of $478.09, which was part of the attached property.

On the trial of the right of property cases judgments were rendered against the claimant and its sureties in the cases of Bemis and Sedberry, but the record before us does not now disclose that any judgment was rendered in the trial of the right of property proceeding in favor of appellant.

“The appellant assigns as error the ruling of the court in refusing to permit appellant to prove by the witness J. K. Sellers that the appellee, Blankenship & Blake Company, had made an agreement with J. H. Bemis •and the firm of Jones, Edgeworth & Sellers to take, hold, and dispose of all the property of the said J ones, Edgeworth & Sellers, including and comprising that bought by J. H. Bemis at sheriff’s sale, and to pay therewith all debts of the said J ones, Edgeworth & Sellers, and that in pursuance of said agreement appellee, Blankenship & Blake Company, did pay off and satisfy in full Bemis’s claim against said firm, and through Bemis did also pay Sedberry’s claim against said firm, and that afterwards the said appellee, Blankenship & Blake Company, did pay to the firm of J ones, Edgeworth & Sellers something over $1700 in casillas their half of •the surplus left after paying said claims of Bemis and Sedberry.”.

Delivered November 28, 1890.

It is sufficient to dispose of this assignment to say that the payment of the Bemis and Sedberry claims, without consuming any of the property claimed by the Blankenship & Blake Company, was fully established by other evidence, and that in other respects the assignment relates to an issue not made by the pleadings.

The plaintiff offered to prove declarations made by J. H. Bemis, who was made a defendant in this cause only upon the ground of his having signed the appeal bond as a surety, to the effect that the full amount of his debt against Jones, Edgeworth & Sellers had been paid.

Under such circumstances evidence of the declarations of Bemis could not have been properly admitted to bind his codefendants. If the evidence had been admissible, and had been offered and rejected in the form above stated, it still would not have been error for which the judgment should be reversed, as the fact was otherwise fully proved without there being any controversy to the contrary.

The third assignment of error calls in "question the correctness of the judgment upon the evidence.

In the absence of proof of a judgment in favor of appellant against the Blankenship & Blake Company no judgment in favor of plaintiff could be rendered,, and it is useless to consider the issue as it would have been presented if that fact had been established.

The judgment is affirmed.

Affirmed.

Counsel for appellant filed an application for rehearing for the following reasons, to-wit:

1. Because the court erred in finding that the record did not disclose the fact that appellant had'and held any judgment against appellee, Blankenship & Blake Company, when in truth and in fact the record does embrace said judgment in full. While it is true that this same judgment was stricken out of the record on motion of counsel for appellee, yet said judgment as stricken out on said motion was so stricken out of the record as part of the testimony offered by appellee upon the trial of said cause,' and the motion of appellee to so strike out referred to the judgment as shown by transcript, and was the judgment offered by appellee in the court below; and the motion did not refer to the judgment offered in evidence by appellant, as shown by said motion and the record in this case. By an examination of the transcript it will be seen that the judgment offered by appellant was duly and properly entered into the statement of facts. Afterwards the appellee also offered same judgment in evidence, and the clerk inserted said judgment a second time; and the motion of counsel for appellee specifies the judgment which he seeks to have stricken from the record, and gives the pages of the transcript where said judgment is entered.

2. Because if said judgment of Samuel Thurman against Blankenship & Blake Company had not been offered in evidence at all by either appellant or appellee, it would nevertheless have been proven by the recitals in the appeal bond upon which the suit was brought, wherein the judgment is fully set forth and described, and by appellee herein; and there was no plea of non est factum as to said appeal bond, and said appeal bond was made a part of plaintiff’s (below) petition and attached as an exhibit thereto and offered in evidence by appellant herein. Appellee is bound by the recitals in said bond in the absence of some plea putting in issue its execution by appellee herein.

3. Because the answer of appellee in the court below did not make an issue of any of these matters, the only issues of fact made by such answer being one of former adjudication, and further that the property involved in the various suits did not sell for a sufficient amount to satisfy the prior judgment lien holders, and that hence appellant ought not to recover.

i. Because if the facts do not appear from the record, then appellant insists that appellee should not be allowed to take advantage of his own wrong and strike out his own testimony which has been inserted in the statement of facts by the clerk under the direction of counsel for appellee; especially when all the other facts go to show a case in which appellant ought to recover and one where he would suffer irreparable injury should the judgment of affirmance be permitted to stand. Again, the motion only operates as to such parts of the record as designated, and there being no objection to the judgihent offered by appellant, and that judgment being the same one as the one stricken out, said judgment is still before the court, and the attention of the court is respectfully invited to a careful inspection of said motion and the record in this case, from which will appear the facts as stated herein.

Wherefore appellant prays that a rehearing be granted him, and that upon rehearing hereof the court render such judgment here as should have been rendered in the court below.