Thomas v. Walsh, McClarty & Co. , 44 Tex. 160 ( 1875 )

Moore, Associate Justice.

This suit was brought by appellees against appellant and one J. M. Stinnett on an open account due them hy said Stinnett for certain goods, wares, and merchandise sold and delivered him by appellees.

An inspection of the petition shows that appellees seek relief on two entirely distinct and different grounds. In the first place, they allege that Stinnett had made a fraudulent sale and transfer of his property to Thomas, who was using and disposing of the same for his own profit, and ask that said sale be set aside and held for naught, and the property be declared subject to sale for the payment of their debt; and in the event said Thomas has disposed of said goods, so that there is not sufficient of them left to pay their debt, that they have judgment against him.

It is also alleged by appellants that the transfer of said goods to Thomas purported to be made on trust to sell and dispose of them for the payment of the debts of said Stinnett; that though he had accepted said goods on said trust, he had failed and refused to comply with the same. They ask said Thomas be required to make a full, true, and perfect answer to the matters alleged and interrogatories propounded concerning said trust, and to render an account of the same, &c., and that said trust he settled and closed.

If it be admissible tó join such dissimilar grounds of action in the same petition, (which we need not now decide, as the question is not presented by the record as it comes before us,) it is clear beyond all dispute that the default or failure of Thomas to answer the petition will not warrant a judgment and execution against him for the amount found to be due appellee by Stinnett. It is insisted that appellant’s failure to answer the petition admits the truth of its averments. Grant that this is so, what averment is there in the petition which justifies formal judgment against Thomas? If the sale and transfer of the goods is fraudulent it is void, and the goods are subject to levy and sale under judgment and execution against Stinnett. And if we concede that if Thomas has fraudulently converted any of them to his own use, or has disposed of them so that the creditors cannot reach them, he would be liable for the value of such of them as he has thus converted or disposed of, we are still met with the difficulty that while it is alleged in the petition that Thomas is selling, using, and disposing of them to his own use and for his own benefit, the amount or value so used and disposed of is not alleged. It cannot therefore be said, though all the allegations of the petition are admitted, that the amount of the goods so used and disposed of is equal to appellee’s judgment.

And certainly it cannot be insisted that the failure of Thomas to answer and show the condition of the trust estate and his action as trustee will authorize a personal judgment against him on the vague and indefinite charges in the petition. In view of the allegations in the petition, it evidently would have been necessary to have discovered from the trustee before a decree could have been made for the settlement of the trust, if, indeed, such a decree could have been properly rendered under the petition, and without other parties interested in the trust being brought before the court.

The judgment is reversed and the cause remanded.

Reversed and remanded.