Douglass, Brown & Co. v. Neil & Co.

37 Tex. 528 | Tex. | 1873

Walker, J.

The appellants were garnished in an action by James Neil & Co., against Quinn, Murphy & Neil. The plaintiffs below sued out an attachment, and Y. M. Blanding was also served with a writ of garnishment. The record is silent as to what became of the writ served on Blanding, and it will not be material to notice him further in this opinion. J. J. Brown, one of the firm, answered for his firm, which answer was controverted by the appellees.

At the Fall Term, 1872, the appellees recovered judgment for upwards of fourteen thousand dollars against Quinn, Murphy & Neil. At a subsequent day of the term, the appellants filed a plea in abatement, and, at a still subsequent day, exceptions to the affidavit and pleas, controverting Brown’s answer, and on the same day the appellants filed the answer of Brown, of the firm of Douglass, Brown, Reynolds & Co.

The answer of Boyle was controverted by the affidavit of Page McDannell, and also a plea controverting Boyle’s answer.

Appellees filed exceptions to the plea in abatement. These pleadings were followed by exceptions on the part of appellants to the affidavit and pleas which controverted Boyle’s answer.

The pleadings being thus made up, the appellants moved for a continuance of the cause on the affidavit of Boyle, which motion was overruled. Then follows in the record an agreement of parties to consider as evidence in the cause certain judgments therein set forth.

The pleadings in the case show how vigorously the contest has been waged, and now we are to consider numerous ex-oeptions urged by garnishees as errors to the rulings of the District Court.

Precisely how far these appellants may be heard in this court objecting to a judgment of which, the defendants below do not complain, is a matter not easily settled upon the law and the practice; but it does appear to us that the province of the appellants goes little, if any, farther than to see that the judgment against the defendants below is correctly rendered, and that, if they should pay. it, or any part of it, it would be a protection to them, in the amount so paid, against an)r subsequent claim which might be made against them by the defendants in the judgment; and further, that the amount of their own indebtedness to the defendants is correctly ascertained, and that the judgment of the court against them is in accordance with law. Believing this to be the correct rule of law, we might save ourselves the labor of noticing seriatim the assignments of error made by the appellants.

Hr. Drake, in his learned work on Attachments, with a full acquaintance of the authorities touching this subject, lays down the rule that the garnishee will not be permitted to de•feat the plaintiff’s action on grounds which .the defendant did not assume, or chose to waive. (See Drake on Attachment, Section 713.)

We cannot admit the right of the appellants to have this judgment set aside on the ground that James Neil was a partner in each of the firms sued and being sued. It is true that in .actions at law a party may not be allowed to sue himself, but in courts of equity, partnership firms thus constituted have always been permitted to have their rights adjudicated, the :law having regard rather to the artificial person than to the individual members composing the firm, which constitutes the .artificial personality. The objection made on this account, in those countries and States where the law and equity jurisdiction are kept separate, each 'contending for its" own province, would have great force; but in our State, with its blended jurisdiction, the courts are often called on to consider, even in the same case, questions both of law and equity. Under our Constitution, Article 5, Section 7, the District Courts have original jurisdiction, without regard to any distinction between law and equity, and this jurisdiction comes to us,- unabridged, by appeal. This question was early settled in Texas by the case of Smith v. Clopton, 4 Texas, 114. If a party has rights cognizable either in a court of law or equity, he has a case within the jurisdiction of our courts. This was a case which serves well to illustrate the rule. Clopton could not have maintained his action at law in any State where the law and equity jurisdictions are separated.

We think any interference on the part of the appellants in the suit of appellees against Quinn, Murphy & Neil, other than that already indicated in this opinion, would not be authorized by any correct system of practice, unless it were under a statute such as that of Mississippi, referred to in Drake on Attachment, Sections 736 and 737; under which statute the case in 4 Smedes & Marshall, 683, was doubtless adjudicated. In Atkins v. Watson, 12 Texas, 200, Mr. Justice Wheeler clearly lays down the rule which we have adopted for our government on this branch of. the case. It matters not, then, if Neil was a partner in each of the firms which constituted the original parties to the action; it was clearly within the province of a Texas court to entertain jurisdiction and adjudicate all matters in difference, properly brought to the notice of the court.

We are of the opinion that the District Court acquired jurisdiction both of the persons and property of the defendants, and that, so far as this question of jurisdiction is concerned, the judgment against Quinn, Murphy & Neil was regular and valid. There is an answer filed by Smith and Glenn, attorneys for Quinn, Murphy & Neil, found in the record, which gave the court jurisdiction of the person of the defendants, and the levying of the attachment upon their property brought it likewise within the jurisdiction of the court.

We think the court below properly sustained the exceptions to the appellant’s pleas in abatement and in bar, which was equivalent to saying what we have already said in this opinion as to the province of garnishees in attempting to defend for the defendants below. It was certainly a bold move, and one the correctness of which we cannot recognize, for the appellants, after judgment against their creditors, to traverse and question the truth of the affidavit for 'the attachment. The defendants themselves would not be allowed to do this, had they felt aggrieved. Their remedy must have been on the attachment bond. They had appeared and answered, and judgment has gone against them, and they do not even appeal to this court. The appeal is prosecuted by the garnishees. What would they have us do? Shield them from their indebtedness to their creditors ? This they really do not deny, but rather contest this case for their creditors, with the appellees, and we cannot see that their creditors are asking them to do this.

Had the attachment been void or subject to any legal exceptions, the defendants might have quashed it on motion.

But it is insisted that the court erred in overruling the motion for a continuance for want of the testimony of Quinn, Murphy, and House. The appellants suffered nothing for want of the testimony of House; they got the full benefit of the credits which it was proposed to prove by him. As to the testimony of Quinn and Murphy, this was disclosed to the court by the affidavit. The court had a perfect right to determine the relevancy and materiality of the evidence thus proposed, and if the evidence was found not to be admissible or material, then the motion for a continuance was properly overruled. (Williams v. Talbot, 27 Texas, 159.) And the court had a right to look to the pleadings to determine whether the allegata required or permitted the introduction of the evidence proposed, (Fowler v. Buckner, 23 Texas, 86; Hardison v. Hooker, 25 Texas, 93.) We are of the opinion that the matters proposed to be proved were inadmissible in support of any legal issue made in the case. The motion for a continuance was made by the garnishees after judgment had gone against the defendants. The appellants have no right to impeach the judgment against their creditors, and the motion for continuance was properly overruled on this ground alone. But it is very doubtful, had the evidence been admissible and pertinent, whether the appellants were within the rule of due diligence.

What we have said already disposes of most of the material objections urged against the proceedings in the court below. It may be a sufficient answer to what is said by the learned counsel in support of the 5th and 6th assignments of error, that we refer to what has already been said in this opinion, that it was not in the province of the appellants to assume the defense of the action for their creditors. There is a noticeable fact that, though complaint is made here against the action, for the reason that Neil was connected with both the firms, that no charge of fraud or collusion is made in the pleadings or arguments, nor. does it appear that Neil has actively concerned himself in the case at any stage of the proceedings.

The objections made to the charge of the court we cannot regard as tenable. The appellants could not have suffered by any inaccuracies supposed to exist in the charge.

It becomes our duty, regarding the law in the light we have presented it, to affirm the judgment in this case, which is accordingly done.

Affirmed.