Wettermark v. Campbell, 56 S.W. 331

Wettermark v. Campbell

56 S.W. 331 | Tex. | 1900

This case comes to us upon a certified question. The certificate is as follows:

"September 5, 1899, B.S. Wettermark, a resident of Nacogdoches County, brought suit in the District Court of that county against W.J. Campbell, the sheriff of said county, and B. Adoue, a resident of Dallas County, to recover damages for the levy of an execution upon certain land belonging to the said B.S. Wettermark, and his interest in the business belonging to the firm of A. Wettermark Son, of which the plaintiff was a member. Plaintiff alleged that, `The defendant, J.B. Adoue, through his attorneys, Cobb Avery, procured an execution from the district clerk of Dallas County, Texas, and placed the same in the hands of the defendant Campbell, sheriff of Nacogdoches County, Texas, and the said Adoue through his attorneys, Cobb Avery, instructed the defendant Campbell to levy said execution upon whatever interest the plaintiff, B.S. Wettermark, had in and to the banking business of A. Wettermark Son, and that, in accordance with said instructions, the defendant Campbell levied said writ of execution upon the interest of B.S. Wettermark in the banking business of A. Wettermark Son; that at the time of the levy of said writ of execution, the said Campbell was informed that there was no judgment in the District Court of Dallas County, Texas, or in any other court against the plaintiff, B.S. Wettermark, and in favor of J.B. Adoue, for any amount, and that said execution was fraudulently procured by J.B. Adoue, who had conspired with the clerk of the District Court of Dallas County to issue execution for the purpose of extorting money from this plaintiff, and that the said Campbell, after being fully informed that there was no judgment against plaintiff for amount as shown by the execution, proceeded under the advice and with the consent of the said Adoue, through his attorneys, Cobb Avery, who were present and directing the said Campbell what property to levy upon, and that he levied the same upon not only the real property of the plaintiff, B.S. Wettermark, but also upon his interest in the banking business of A. Wettermark Son.'

"The petition further alleged that, `Said J.B. Adoue conspired with the district clerk of Dallas County, Texas, for the purpose of having execution issue against the plaintiff, B.S. Wettermark, and that he procured the said district clerk of Dallas County to issue an execution directed to the sheriff of Nacogdoches County, Texas, for $13,882, with instructions to levy the same upon any property belonging to the plaintiff, B.S. Wettermark; that one Avery, of the firm of Cobb Avery, attorneys for J.B. Adoue, took said writ of execution and brought same *521 to Nacogdoches and delivered same to the defendant Campbell, sheriff of Nacogdoches County, with instructions to levy same upon all the interest that the plaintiff Wettermark had in the banking business of A. Wettermark Son, and that Adoue, through his attorney, Avery, caused the sheriff to levy upon the plaintiff, B.S. Wettermark's, interest in the business of A. Wettermark Son by serving the said B.S. Wettermark with written notice that all his interest in his said business was levied upon, which said notice was written out by the defendant Adoue's attorneys, and the sheriff's return was made by said attorneys, stating that he had levied on all the interest of B.S. Wettermark in the banking business of A. Wettermark Son, and that the defendant, J.B. Adoue, through his attorneys, Cobb Avery, who were then in the town of Nacogdoches, notified various and sundry parties in the town of Nacogdoches that he had caused to be levied an execution upon the interest of B.S. Wettermark in the banking firm of A. Wettermark Son, and, while in said town, notified Bradstreet's Mercantile Agency and Dunn's Commercial Agency that all the interest of B.S. Wettermark in the business of A. Wettermark Son had been levied upon to satisfy an execution for $13,882; that the report so circulated by said J.B. Adoue, through his attorneys, Cobb Avery, immediately before the levy and at the time of the levy, caused several merchants to make a run upon the bank, which threatened to injure the financial reputation and standing of said bank; that at the time said Adoue, through his attorneys, procured said execution from the district clerk of Dallas County, he knew that he had no judgment against the plaintiff, B.S. Wettermark, and the same was unlawfully and wrongfully done for the purpose of extorting money from the said B.S. Wettermark.'

"It is also alleged that there was no judgment ever rendered against the plaintiff for the amount stated in the execution or for any amount; that said Adoue never recovered a money judgment against the plaintiff for any amount, and that there was no authority by which said execution could issue. It is believed that the allegations of the petition have been sufficiently stated to show that the question which is hereinafter set out arises in the decision of the case, but the petition at length as contained in the record is referred to so that the Supreme Court, should they so desire, may look to it for the presence or absence of other allegations. The defendant Campbell excepted to the sufficiency of the petition to show a cause of action against him. The defendant Adoue pleaded to the jurisdiction of the court over him, both by demurrer and plea in bar. Upon a hearing, the court below sustained the exceptions of both the defendants and dismissed the suit. The action of the court below in dismissing the suit as to the sheriff has not been properly presented for revision by this court, and the venue of the suit as to the defendant Adoue depends upon the question of whether or not he committed a trespass upon the property of the plaintiff in the county of Nacogdoches within the meaning of subdivision 9 of article 1194 of the Revised *522 Statutes. I certify the question for the decision of the Supreme Court as follows:

"Are the facts alleged in the petition sufficient to show that the defendant Adoue committed a trespass by the levy of the execution or otherwise for which a suit for damages can be maintained against him alone in the county of Nacogdoches?"

The statute which authorizes a court of civil appeals to certify questions for the decision of this court makes it the duty of the chief justice of that court "to certify the very question to be decided." Rev. Stats., art. 1043. This has never been construed as restricting the court to certifying one question only in a case; but we think that it implies that if more than one question be certified, each should be separately and distinctly stated. The question here certified seems, upon first blush, to be complex and to involve the determination of two distinct queries necessary to the decision of the case, namely, (1) does the petition show a trespass committed for which a suit for damages may be maintained; and (2), if so, can it be maintained against a nonresident of the county in which the damage was inflicted? Taking the allegations most strongly against the pleader, the petition probably requires a construction that the levy upon the interest of the plaintiff in the partnership of A. Wettermark Son was made by service of notice upon B.S. Wettermark alone. The statute directs that a levy in such a case may be made by "leaving a notice with one or more of the partners." Rev. Stats., art. 2352. The language is broad enough to embrace the partner whose interest has been levied upon, but sound policy dictates that both for the protection of the execution creditor, and of the partner or partners whose interests are not levied upon, one or more of the latter should have notice. Therefore, it may be doubted whether the Legislature intended to authorize a levy in such a case by notifying the defendant in execution only. This, therefore, suggests one point presented by the certificate before us.

Again, there being no actual seizure of any property of the partnership and no interruption of the partnership business, save such as resulted from loss of credit, the question also arises whether this be a damage for which the law will give compensation. So that the first of the questions just stated would seem to resolve itself into two others.

We see, however, from the statement in the certificate, that the court sustained Adoue's exception to the jurisdiction; and since it is not to be presumed that the Court of Civil Appeals intended to certify two questions as one, and since this was the question passed upon in the court below, we conclude that this is the question we are called upon to decide.

The question then is, is the wrong charged to have been committed by the defendant, Adoue, one for which a suit may be maintained against him as a sole defendant in Nacogdoches County, notwithstanding the fact that he resides in Dallas County? The general rule of the statute is that a defendant must be sued in the county of his residence. To this *523 rule there are numerous exceptions. One is, "Where the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie, in which case the suit may be brought in the county where such crime, or offense, or trespass was committed, or in the county where the defendant has his domicile." Rev. Stats., art. 1194, Exception 9.

This provision was construed in Hill v. Kimball, 76 Tex. 210 [76 Tex. 210], and it was there held that the word "trespass" was not confined to the restricted sense of "an injury intentionally inflicted by force," but would embrace a tort negligently committed. The remarks in that opinion gave the word a wider scope than was necessary to a decision in that case, and in the subsequent case of Ricker v. Shoemaker,81 Tex. 22, where the provision again came under construction, the rule there stated was qualified and it was held that the trespass meant was some wrongful act committed, and not merely a tort resulting from the negligent omission to perform a duty. But while the broad construction put upon the provision in question in the opinion in Hill v. Kimball was not followed, the decision in that case was not overruled. The point there ruled, — that a tort resulting from an act committed, without any intention of injuring the plaintiff, but which, through the negligence of the defendant, resulted in an injury to the former, constituted a trespass within the meaning of the statute, — was not affected by the later decision. The rule laid down in Ricker v. Shoemaker was followed in the subsequent case of Austin v. Cameron, 83 Tex. 351 [83 Tex. 351]. In the present case, it is charged in the petition not only that the defendant, Adoue, wrongfully caused an execution to issue from the District Court of Dallas County, but also, that his attorneys, while in Nacogdoches County and while acting for him, caused it to be levied in that county. The damages are claimed to accrue from the levy. The levy alleged to have been made in Nacogdoches County is an act "committed" in that county. The case, therefore, falls within the decision of Hill v. Kimball, and not within the rule applied in Ricker v. Shoemaker and Austin v. Cameron.

The case of Hilliard v. Wilson, 76 Tex. 183, is not in conflict with these views. There, the sheriff was sued for the illegal and oppressive execution of a writ of attachment, and the plaintiffs in attachment, L. H. Blum, were made codefendants, it being charged that the attachment was wrongfully issued and that they instigated the acts of the sheriff. The defendants, L. H. Blum, being residents of another county from that in which the attachment was levied and the suit was brought, pleaded the privilege of being sued in the county of their residence. The court charged the jury, in effect, that if they instigated the illegal acts of the sheriff, they were liable to suit in the county where the levy was made; but, if not, the suit as brought could not be maintained against them. It was held, and, as we think, properly, that the charge was correct. If the sheriff acted oppressively, he and all who instigated the trespass were properly sued in Burleson County, where it was committed. But the attachment was sued out in Galveston County, and it *524 was there that the Blums resided. Hence, for simply suing out the attachment wrongfully, they could only be sued in that county. And it may be that in this case, if Adoue had not been charged with a direct participation through his attorneys in the acts done in Nacogdoches County, he could not be sued in that county against his consent.

We are of opinion that the question should be answered in the affirmative.