Dalsheimer Co. v. Morris , 8 Tex. Civ. App. 268 ( 1894 )

Prior to the commencement of this litigation, a mercantile business was conducted in the town of Beaumont in the name of E. Morris, who was a married woman, the wife of M. Morris. The business was managed by M. Morris and I. Morris, the latter being the son of M. and E. Morris. On the 20th day of November, 1891, appellees Mothner Co. brought suit against M. and E. Morris, seeking judgment against both of them, on notes signed "E. Morris," and sued out a writ of attachment, and caused it to be levied on the stock in trade. On the next day, appellants, Dalsheimer Co., sued M. Morris and E. Morris on an account for merchandise sold and delivered, alleging them to be partners, doing business under the firm name of E. Morris, and caused an attachment to be levied on the same property on which the writ in favor of Mothner Co. had been levied.

The goods were sold under orders of the court in both cases, and the proceeds deposited with the clerk, Subsequently, a judgment by default was obtained by Mothner Co. against Morris and wife, for the amount due on the notes, and foreclosing the attachment lien, but directing that the proceeds of the property attached be retained by the clerk, until the rights, with respect to it, of Mothner Co. and Dalsheimer Co. should be determined.

In their suit, Dalsheimer Co. filed amended pleadings, making Mothner Co. defendants, and alleging collusion and fraud, in the suing out of their attachment, between them and Morris and wife

The issue thus formed was tried before a jury, and after the evidence was all in the court instructed a verdict for Mothner Co., and which was accordingly rendered, Dalsheimer Co. recovering judgment for their debt against M. Morris. From this they appealed.

Before Mothner Co. were made defendants in the cause, Dalsheimer had propounded interrogatories to Mrs. Morris upon which her answers were taken, without previous notice; and during the trial her answers were offered as evidence against Mothner Co., and were excluded by the court, on the objection of the latter, based upon the fact that the deposition had been taken before they were parties to the suit, and without notice to them.

The notes of Mothner Co. were dated respectively, April 20, June 22, and August 15, 1891, and were payable sixty days after their respective dates. There was no evidence that the business or stock of goods belonged to Mrs. Morris in her separate right. There was, as we conclude from the facts, no evidence of any fraud or collusion between Mothner Co. and Morris and wife. The only evidence relied on by appellants were the facts, that the second note was given before the first was paid, and that the third was given when both the others were still outstanding; that Mrs. Morris was a married woman, and allowed judgment by default to be taken against her; and a conversation between one of appellants' attorneys and M. Morris, which took place after the levies of the attachment, in which Morris expressed resentment towards the agent who had made the affidavit for appellants' attachment, because he was "trying to investigate Mothner Co.," and "playing detective to find out whether Mothner and Hecht had any money" before the failure; and said that "Levy (the agent) ought not to be poking into my business."

These facts were not in our opinion sufficient to justify any inference that the debt asserted by Mothner Co. was fictitious, or that there was collusion between them and the Morrises in suing out the attachment. None of them, nor all of them combined, are inconsistent with the presumption, to be indulged in the absence of evidence to the contrary, that the parties acted fairly and honestly in the creation of the debt and the suing out of the attachment.

Conclusions of Law. — 1. There was no error in the exclusion of the deposition of Mrs. Morris. There was no issue to be tried between plaintiffs and herself; and it could not be used as evidence against those who were not parties to the suit when it was taken, and who therefore had no notice or opportunity to cross-examine. It was, as to Mothner Co., ex parte. Had the deposition been read, however, we are of the opinion that it stated no facts which would have changed the attitude of the case.

2. From what has been said upon the evidence, it follows that the court committed no error in informing the jury that there was no evidence of fraud.

3. Upon the face of the record, Mothner Co. had the prior right to the proceeds of the property attached, as their attachment was first levied. The judgment against Morris and wife established the debt, as against them, and entitled Mothner Co. to the fruits of their attachment until appellants produced some evidence justifying the submission to the jury of the question whether or not the debt was real or fictitious, or whether or not there was fraud in the obtaining of the writ. The mere fact that Mrs. Morris was a married woman, and was therefore not legally liable upon the note, did not show that no debt existed to support the lien of the attachment. The goods attached were community property, and justly chargeable with community debts. The debt which was charged upon them was contracted during the marriage, and was a community debt, though the wife's name was signed to the note. The facts alleged by plaintiffs themselves show that the husband was responsible for debts contracted in the name of E. Morris in the conduct of the business. Such being the case, and there being no evidence that it was not contracted as had been alleged by Mothner Co. and adjudged by the court, it was correct to hold Mothner Co. entitled to the priority.

The judgment is affirmed.

Affirmed.