Charles Wetzel v. L. Simon & Co., 87 Tex. 403

GAINES, Chief Justice. The defendants in error having caused a writ of attachment to be levied upon a certain stock of goods in possession of and claimed by the plaintiff in error as assignee, the latter made affidavit and gave bond under the statute for the trial of the right of property in such cases. The sheriff having assessed the value of the property at $650, returned the oath and bond, together with a copy of the writ, to the District Court of Hays County.

The issues made up in accordance with the statute were determined in the District Court in favor of the attaching creditors; and an appeal having been taken by the claimant to the Court of Civil Appeals, the judgment of the District Court was there affirmed. The appellant thereupon made application to this court for a writ of error, and the writ was granted. The case was submitted on a former day of this term, but since the submission the defendants in error have presented a motion to dismiss the writ, upon the ground that this court has no jurisdiction of the cause.

The question is an important one, and its determination will affect the right of appeal in a considerable number of cases in which application may be made for a writ of error to this court. If we are without jurisdiction of the cause it is the duty of the court to dismiss the writ, with or without motion.

Instead therefore of having notice of the motion to dismiss served, we have determined to set aside the submission and to request counsel to present arguments upon the following questions: The statute provides, that “the judgments of the Courts of Civil Appeals shall be conclusive in all cases on the facts of the case, and a judgment of such court shall be conclusive on the law and fact; nor shall a writ of error be allowed thereto from the Supreme Court in the following cases, to wit: Any civil case from a County Court or from a District Court, when under the Constitution a County Court would have had original or appellate jurisdiction to try it,” etc.

Laws 1892, p. 26. The jurisdiction of the Supreme Court is confined, with some exceptions, to cases over which the Courts of Civil Appeals have appellate but not final jurisdiction. Act of April 13, 1892, art. 1011; Laws 1892, p. 20. 1. Do not these provisions deny jurisdiction to this court to grant a writ of error in any case which, under the Constitution as unaffected by statutory changes, has been or might have been brought in the County Court? 2.

Before the enactment of the laws giving the District Court exclusive jurisdiction of proceedings for the trial of the right of property levied upon by a writ of attachment, execution, or sequestration, where “the property shall be equal to or exceed in value $500” (Revised Statutes, articles 1117, 1164, 4831), did not the County Court have concurrent jurisdiction with the District Court in all such cases, when the value of the property exceeds $500, but did not exceed $1000? Compare

section 8,

article 5, of the Constitution, with

section 16 of the same articles. Delivered October 25, 1894. CAIRES, Chief Justice. The cases cited by counsel for appellant upon the argument settle the question of jurisdiction in this case. Erwin v. Blanks, 60 Texas, 583; Carney v. Marsalis, 77 Texas, 62; Betterson v. Echols, 85 Texas, 214. These decisions had escaped our memory when we referred the question back for argument.

Since it is there held that the County Court under the Constitution did not have jurisdiction of a proceeding for the trial of the right of property when the value of the property levied upon amounted to or exceeded $500, this court has jurisdiction of this case. In his affidavit the plaintiff made oath, that he claimed the property in controversy as the assignee of “Mrs. B. Wise,” but in his answer to the tender of issues by the attaching creditors, he asserts title as assignee of R. Wise; and it is insisted, that he is concluded by his affidavit, and ought not to be permitted to claim in the latter capacity.

To this proposition we do not assent. The statute merely requires, that the claimant shall make oath that his “claim is made in good faith.” 2 Sayles’ Ann. Stats., art. 4822. In Hamburg v. Wood, 66 Texas, 168, the court say: “The affidavit is not a pleading. It is to be passed upon only by the sheriff, who is not required to be learned in the law. It is a safeguard additional to the bond against frivolous delays of legal process.

Its function is discharged when it has been accepted in company with the more substantial assurance of good faith, the bond.” Again, in the same case, the court quote with approval the following language as used by the Supreme Court of Alabama, in the case of Lehman v. Warren, 53 Alabama, 539: “The affidavit serves its purpose when, with a proper bond by the claimant, it arrests the action of the officer and introduces the claim into court as a pending suit.

Its statements can neither enlarge nor narrow the issue which the statute requires to be made up, and it is not probably required for any other reason than as an affirmation of good faith of the claimant in instituting the proceeding.” The statute prescribes, in effect, that in making up the issue the pleading of the claimant shall consist of a brief statement of the nature of his claim (2 Sayles’ Civil Statutes,

article 4834); and we think it was legitimate for the claimant in this case, in answer to the tender of issues presented by the plaintiff, to disregard the statement in the affidavit as to the source of his right, and to assert title under an assignment made by N. Wise. The important question in the case is, whether or not the instrument under which the plaintiff in error claims operated as a valid transfer of the goods in controversy to him. B. Wise carried on at San Marcos a small mercantile business in the name of his wife, who is designated, in this record as Mrs. B. Wise.

Being unable to meet his debts, and believing the goods to be the property of his wife, on the 10th day of November, 1890, he caused her to execute the conveyance in question. It purports and was intended to be an assignment to the plaintiff in error of the goods in stock, the notes, accounts, etc., belonging to the assignor, for the benefit of all her creditors—a list of whom is made an exhibit to the instrument, and is therein referred to as a part thereof. The trial court found, that the effects which purported to be transferred belonged to the community estate of N. Wise and his wife.

The debts were created in carrying on the business, and were the debts of the husband as representing the community, and not the debts of the wife. We apprehend, that if the original stock of goods had been the property of the wife, since the profits of the business belonged to the community estate, debts contracted in the purchase of new goods would be community debts.

Such being the case, we are of opinion that when the husband directed the wife to sign the conveyance in her own name, and when in pursuance of such direction she did so execute it, it passed the title of the property with the same effect as if he had signed it himself in his own name and had delivered it with his own hand. Truman v. Loder, 11 Ad. & E., 589. It is clear, that if he had executed it in the name of his wife, his title would have passed by the conveyance. In Heffron v.

Pollard, 73 Texas, 96, it is said, that “when a party for the purpose of transacting business adopts an assumed name, whether it be fictitious or the name of another, he is bound by a contract made in that name.” In McKee v. Coffin, 66 Texas, 304, it is expressly held, that a valid statutory assignment may be made by a duly authorized agent. The findings of neither the trial court nor of the Court of Civil Appeals show whether the property described in the assignment was all the property of A. Wise which was subject to forced sale or not. Aor does it appear whether or not the

schedule annexed contains the names of all his creditors. We have not searched the statement of facts in order to determine these questions, for we do not deem their determination of any importance.

The statute provides, "that every assignment made by an insolvent debtor, or in contemplation of insolvency, for the benefit of his creditors, shall provide, except as herein otherwise provided, for a distribution of all his real and personal estate, other than that which is by law exempt from execution, among all his creditors in proportion to their respective claims, and however made or expressed, shall have the effect aforesaid, and shall be construed to pass all such estate whether specified therein or not, and every assignment shall be proved or acknowledged and certified and recorded in the same manner as provided by law in conveyances of real estate or other property.” 1 Sayles’ Civ.

Stats., art. 65a. We think it would have been difficult for the Legislature to have used more comprehensive terms or to have expressed in such few words more clearly an intention to give to every assignment by a failing debtor—whether of a part or of the whole of his property, and whether for the benefit of some or of all of his creditors—the effect of a general assignment for the benefit of all in proportion to their respective claims.

If the statute had been intended to apply only to a case in which all the creditors had been provided for, it was unnecessary to say that it should so provide, and that such should be its effect, however made or expressed. So also if the purpose was that it should operate only when all the property not subject to forced sale had been expressly conveyed, it was nugatory to say that it should pass all the assignor’s estate.

It fairly admits of but one construction, and that is, that whenever a debtor, either insolvent or contemplating insolvency, shall make an assignment of any part of his property for the benefit of any of his creditors, it shall operate as a conveyance of all his property to the assignee for the payment of all his debts, and that it shall be treated in all respects as a general assignment made in strict accord with the terms of the act. McCart v. Maddox, 68 Texas, 456; Bank v. Bank (opinion on application at this term, ante., p. 295).

We mean by an assignment a conveyance which is made simply to pay debts, and which neither provides for a defeasance nor for a return of the surplus after the debts are paid, and not an instrument in the form of a conveyance which is merely intended to secure a debt and stipulates that upon its payment the property or any surplus which may remain shall be returned to the grantor. In Donaho v. Fish Bros., 58 Texas, 164, the attempted assignment was made by one partner of a firm, but was not joined in by the others. Releases were provided for.

The partner who did not join in the instrument had done no act which the law had declared should operate to pass title to his individual property, and therefore his title to that did not pass by the assignment. The statute could not fully operate upon the instrument, and it was therefore held void. Kittrell v. Blum, 77 Texas, 336; Still v. Focke, 66 Texas, 716; Baylor County v. Craig, 69 Texas, 332, and Cleveland v. Battle, 68 Texas, 111, are sustained upon the same ground. There are principles announced in Coffin v.

Douglass, 61 Texas, 406, which are not in accord with the views expressed in this opinion; but the assignment in that case was held valid, as we think it should have been upon a different ground. We think the judgment should have been for the claimant, the defendant in the trial court. Accordingly the judgment of the trial court, as well as that of the Court of Civil Appeals, is reversed, and is here rendered for him. Reversed and rendered. Delivered December 21, 1894. Denman, Associate Justice, did not sit in this case.