Friend v. Miller , 1884 Tex. LEXIS 201 ( 1884 )

Stayton, Associate Justice.

The third and fourth interrogatories propounded to the plaintiff were such as he was bound to answer, and upon his refusing.to do so they should have been taken as confessed. E. S., 2243. Taken as confessed, they are equivalent to full proof that D. F. Fore furnished the money with which the goods levied on by the sheriff under the execution :in favor of Lasker and Davis were purchased, and that the goods really belonged to Fore and were therefore subject to execution, although the business was carried on in the name of Miller.

The other evidence in the case tended strongly to show that Fore was the owner- of the goods, and that the business was carried on in the name of Miller in order to prevent their subjection to sale to satisfy the claims of Fore’s creditors.

The pleadings of the plaintiff allege that “ B. F. Friend, pretending to act in his . official capacity of sheriff by virtue of a writ of execution then pretended to be had and held by him against one D. F. Fore at the instigation of Lasker and Davis,” seized the goods.

[Opinion delivered June 28, 1884.]

The defendants answered by a general denial, and further alleged the existence of a judgment in favor of Lasker & Davis, who composed the firm of “ Le Gierse & Co.,” for about the sum of $350 against Fore, rendered in the district court of Coryell county, but the answer did not set out fully the execution and levy. There was no exception to the answer, and under it, without any objection whatever, the defendants proved a valid judgment against Fore and in favor of Le Gierse & Co. for $355.90, rendered by the district court of Coryell county on the 20th of January, 1881; an execution under that judgment, which issued on the 5th of April, 1881, a levy thereof on the goods for the value of which the plaintiff sues, and their sale to satisfy the execution.

The pleadings, taken altogether, were sufficient to authorize proof to be made under them that the goods were seized under a valid execution in favor of Le Gierse & Co. by the sheriff, and that they were sold to satisfy it.

This being true, Miller, by his failure and refusal to answer the interrogatories propounded to him, must be held to have confessed that the goods were bought with the money of Fore, and that they actually belonged to him, and were therefore subject to the execution.

Under such state of facts a- judgment should have been rendered for all the defendants; and as the cause was tried without a jury, the judgment of the court below will be reversed, and judgment will be here rendered that the plaintiff Miller take nothing by his suit, and that the defendants, Friend, Lasker and Davis, recover from him all costs in the court below and in this court; and it is so ordered.

Reversed and rendered.