First National Bank v. East ( 1897 )

The appellant instituted suit in the District Court of Houston County to recover of appellees, E.H. East and M. Harrold, an indebtedness of about $7000, appellant alleging in his petition that said debt was due primarily by appellee East, and that appellee M. Harrold was liable therefor as the surety of said East; that said indebtedness was evidenced by two certain promissory notes executed jointly by said appellees, and made payable to appellant in the town of Crockett, in the county of Houston; that one of the notes was past due, and that the other was not due. The plaintiff further alleged that, since the debt for which said notes were given was contracted by the said East, he had made an assignment of his property for the benefit of his creditors without preference to any; that the said Harrold was the assignee; that the said East fraudulently conveyed his property to said Harrold with the intent to defraud and hinder and delay his creditors; that the said Harrold qualified as assignee and gave bond, as by law required, and that W. Scott and S.B. Burnett were sureties on said bond; that the estate was being administered in Tarrant County, while the residence of said East was in Archer County; that the said East was not insolvent, nor was there any necessity for the assignment, and that same was made in furtherance of a conspiracy between the said East, M. Harrold, and one E.B. Harrold to place his property beyond the reach of the creditors of the said East, and to vest the title thereof in the said M. Harrold for the benefit of himself, the said E.B. Harrold, and the said East; that the value of the estate assigned, consisting of lands, cattle, and horses, exceeded $237,000, and that the debts found against the assignor amounted to about $2200; that said assignee had disposed of the horses and cattle, the same being about the value of $136,000, and that after allowing for all claims proved against said estate, and the costs of the administration, there should be in the hands of said receiver, subject to plaintiff's claim, about $60,000 or $70,000. Petitioner further charged waste by the assignee; alleged that, after qualifying as aforesaid, he had permitted the said East to take possession of and dispose of a large portion of said property at his pleasure; that said E.B. Harrold claimed to be a creditor of said East to the amount of $31,000 or $32,000, and that he was asserting a mortgage lien on cattle and on land to secure said debt; that said E.B. Harrold and other large creditors had not proved their claims, but that the said M. Harrold had sold cattle and applied the proceeds to payment of the claims of said creditors, and that the said E.B. Harrold, notwithstanding, was selling lands of great value. Plaintiff prayed for an attachment to be levied upon lands of the said East, situated in Archer County, and garnishment against M. Harrold, and that said East, who resides in Archer County, and the said E.B. Harrold, M. Harrold, and the said W.S. Scott and S.B. Burnett, all of whom reside in Tarrant County, be made parties defendant, and upon final hearing it have judgment for its debt against the said East and the said M. Harrold, and that the said E.B. Harrold be enjoined from selling the lands of the said East, and that plaintiff also have judgment against M. Harrold and his sureties, the said Scott and the said Burnett, and that it also have all other such orders and decrees as in equity and good conscience it might be entitled to.

The defendants, E.B. Harrold, Scott, and Burnett, and also the defendant M. Harrold, so far as the plaintiff sought relief against him as assignee, pleaded to the jurisdiction of the court over their persons, and claimed the privilege of being sued in the county of their residence. Defendants East and M. Harrold also answered to the merits of the suit, so far as it sought to recover upon the notes, and they also moved to quash levy of attachment writs.

Upon hearing and trial of the case, the pleas of privilege of the several defendants were sustained, and they were dismissed from the suit with their costs, to which judgment the plaintiff excepted; and the motion of the defendants East and M. Harrold to quash and vacate the writs of attachment sued out by plaintiff, together with the levy of the same upon certain lands of said East described in the return of said writs by the sheriff of Archer County, was refused, and to which judgment the defendants, the said M. Harrold and East, excepted; and a jury being waived, the court gave judgment for plaintiff on the notes sued on, and decreed a foreclosure of the attachment lien on lands described in the judgment, the property of East, and directed a sale of so much thereof as might be necessary to satisfy such judgment, to which judgment both plaintiff and defendants East and M. Harrold excepted, and gave notice of appeal; but the plaintiff alone perfected an appeal to this court, and has assigned errors only as to the action of the court in sustaining the pleas of privilege of defendants E.B. Harrold, and Scott, and Burnett, and M. Harrold, and in denying to the plaintiff in this suit any relief under his garnishment as a nonconsenting creditor of the defendant East, and in denying plaintiff also the right in the suit to have the said E.B. Harrold enjoined from disposing of lands belonging to the said East.

In this state of the record, this court is of the opinion that the defendants East and M. Harrold can not have the judgment rendered against them on the notes declared on by plaintiff reviewed by this court, by simply filing cross-assignments here. Had the plaintiff appealed from the judgment rendered for it against them, they might have presented for revision here any part of the judgment of which they might complain, by cross-assignments. It is to be observed that plaintiff brought suit against these defendants on their joint promissory notes, to recover of them their indebtedness, and also to establish an attachment lien on lands of defendant East, upon the alleged ground that said lands had been fraudulently conveyed by East to M. Harrold; and plaintiff also sought relief by garnishment against M. Harrold and his sureties, as the assignee of East, plaintiff being a nonconsenting creditor of East. Upon plaintiff's first cause of action, judgment was rendered for it. Upon the plaintiff's second cause of action, the judgment of the court was for the defendants, upon their pleas of privilege, and from that judgment plaintiff appealed; but from the judgment rendered for plaintiff, neither plaintiff nor defendant have appealed, though notice of appeal was given by defendants. Railway v. Skinner, 4 Texas Civ. App. 660[4 Tex. Civ. App. 660].

The contention of the appellant, that inasmuch as the court had acquired jurisdiction over defendant M. Harrold, by reason of his having executed with the defendant East the notes sued on, therefore the court had jurisdiction to hear and determine any other cause of action which plaintiff might have against him, and which might be properly joined with the action on the notes, is, we think, not tenable. It was solely by reason of the fact that the notes were made payable in Crockett that the plaintiff could sue either East or M. Harrold in Houston County. The authorities cited by appellant in support of its contention do not, we think, go to the extent of holding that, when a court acquires jurisdiction over the person of a defendant, for the purpose of hearing and determining one cause of action alleged against him, it may assume jurisdiction, notwithstanding his plea of privilege, over him for the purpose of deciding any other cause of action properly joined with that which authorized the plaintiff to sue the defendant in a county other than that of his residence. The basis of this contention is, that the policy of the law is to prevent a multiplicity of suits. But policy can not be permitted to defeat the obvious purpose of an express statute which secures a valuable privilege to parties defendant. The only case cited which speaks to the proposition contended for by appellant is that of Middlebrook v. Bradley, 86 Tex. 706, and that case seems to us to be sui generis; and we are not disposed to follow it one step further than we are compelled to do. In that case, the consideration of the note, which named no place for its payment, was a credit indorsed on one of the notes which were made payable in the county in which the suit was brought, so that in fact each of the notes may have been by the Supreme Court considered as a fractional part of the same debt.

It not being possible for us to consider the cross-assignments of defendants East and Harrold, and discovering no error in the judgment sustaining the several pleas of privilege filed by E.B. Harrold, W. Scott, and S.B. Burnett, and of the defendant M. Harrold, in his capacity as assignee of the defendant East, and in dismissing plaintiff's suit as to them, the judgment is affirmed.

Affirmed.

Writ of error refused.