Opinion
No. 3813.
May 15, 1930. Rehearing Denied May 29, 1930.
Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
Suit by H. L. Fitzpatrick and others against J. Balie Finks. Judgment for plaintiffs, and defendant appeals.
Affirmed.
As commenced by a petition filed November 7, 1927, this suit was by appellee H. L. Fitzpatrick as plaintiff against appellees J. W. Gough and the Dallas Club, a corporation, and appellant J. Balie Finks, as defendants. The suit as so commenced was (1) to recover of said Finks $18,500 alleged to be owing by him to said Fitzpatrick on a contract covering material furnished and work done by the latter in constructing a dam, a clubhouse, etc., on land belonging to the former in Titus county, and (2) to foreclose as against said appellant Finks and said appellees Gough and the Dallas Club a mechanic's lien alleged to have been created on the property to secure the payment of said $18,500. The cause was tried on a third amended petition (duly sworn to) filed December 12, 1928, in which said Fitzpatrick was named as plaintiff and said Dallas Club, J. W. Gough, W. C. Hickman and his wife Frankie Hickman, and said appellant J. Balie Finks were named as defendants. In said amended petition Fitzpatrick charged the making of a contract covering the construction of the dam, clubhouse, etc., and creation of a mechanic's lien to secure the payment of the $18,500, alleged performance by him of his undertaking under said contract, and an agreement by Finks that he was indebted to him (Fitzpatrick) in said sum of $18,500 on account of such performance, and then alleged that as evidence of said indebtedness said Finks on May 1, 1927, made and delivered to him his promissory note of that date, whereby he (Finks) undertook and bond himself on or before 90 days from that date to pay to him (Fitzpatrick) or his order said sum of $18,500, interest and attorney's fees, and on August 1, 1927, as a renewal of and substitute for said note dated May 1, 1927, made and delivered another promissory note, dated said August 1, 1927, whereby he (Finks) undertook and bound himself six months after that date to pay to him (Fitzpatrick) or his order said sum of $18,500, interest and attorney's fees. It was then alleged that to secure the payment of said note Finks on said August 1, 1927, conveyed described land to one Rawlins as trustee. In said petition Fitzpatrick alleged, further, that Finks was in possession of the property covered by the mechanic's lien and by the trust deed to Rawlins and that he feared Finks would "make (quoting) use of his possession thereof to injure said property and will waste and convert to his own use the rents, revenues, and fruits thereof." It was alleged, further, that Gough, the Dallas Club, and the Hickmans were asserting some character of right to, or interest in, the property. The prayer was for judgment for the amount of the note, a foreclosure of the liens claimed as stated, and for general relief. It appearing at the trial that, while the note sued upon was payable to appellee Fitzpatrick, it belonged to him and appellees R. M. Bailey and L. P. Burns as partners, said Bailey and Burns were allowed to join said Fitzpatrick in the prosecution of the suit as plaintiffs. In his answer to the suit Finks, after denying the truth of the allegations in said petition, charged that he made the note sued on for the accommodation of Fitzpatrick and that same was without a consideration to support it, and then alleged that, if he was mistaken about that and the note was enforceable as a valid obligation, it was entitled to credits aggregating more than $5,000 in amount. In his said answer Finks alleged, further, that Fitzpatrick had wrongfully procured the issuance of a writ of sequestration and had same levied on the property covered by the mechanic's lien and lien of the trust deed to Rawlins, for which he sought a recovery of damages against Fitzpatrick. In the answer the Hickmans filed, they set up a contract they alleged they had with Finks, whereby he leased to them the land and improvements thereon covered by the mechanic's lien and trust deed hereinbefore referred to, alleged a breach thereof, and sought a recovery of damages against said Finks, and also against said Fitzpatrick on allegations that he had wrongfully had a writ of sequestration issued and levied on said property, thereby depriving them of the possession and use of same under their contract with Finks. The writ of sequestration sued out against J. Balie Finks was applied for, issued, and levied February 4, 1928, and the one sued out against the Hickmans was applied for, issued, and levied May 9, 1928. Special issues as follows were submitted to the jury: (1) "Were the notes herein sued on executed by J. Balie Finks as an accommodation only to H. L. Fitzpatrick?" Answer: "No." (2) "Did the plaintiff contract and agree to furnish the material and labor and construct the dam and club house and reimburse himself for money expended for such purpose solely out of the sale of memberships in the club?" Answer: "No." (3) "At the time of making the affidavit for sequestration against J. Balie Finks did the defendant J. Balie Finks intend to make use of his possession of the property to injure said property (or) to waste or convert to his own use the rents, fruits, timber and revenues thereof?" Answer: "Yes." (4) "What, if anything, do you find from a preponderance of the evidence would have been earned net to the owner in the operation of the property as an amusement park from the 14th (4th?) day of February, 1928, to this date had not the writ of sequestration issued?" Not answered. (5) "At the time of making the affidavit for sequestration against W. C, Hickman and wife Frankie Hickman did the said W. C. Hickman and wife Frankie Hickman intend to make use of their possession of the property described to injure said property, or waste or convert to their own use the rents, fruits and revenues thereof?" Answer: "Yes." (6) "What do you find from a preponderance of the evidence would have been the value of the net profits, if any, that would have been derived from the use of the property by the defendants W. C. Hickman and Frankie Hickman from the date of the levy of the writ against the Hickmans up to January 1, 1929, had they been permitted to remain in the possession thereof, not Including cotton, if any, raised by Davenport nor rental club house as a residence?" Answer: "$395." (7) "What do you find from a preponderance of the evidence would have been the value of the cotton, if any, that would have been produced by Walter Davenport on the property for the year 1928?" Answer: "$180." (8) "What amount of money, if any, did the plaintiff expend for material and labor in the construction of the dam and the club house?" Answer: "$18,500." (9) "What do you find from a preponderance of the evidence was the rental value of the club house from the time Hickman was dispossessed until January 1, 1929, as a residence?" Answer: "$175." (10) "What do you find from a preponderance of the evidence was the reasonable value of the timber removed from the land since the levy of the writ of sequestration?" Answer: "$40." (11) "What amount has been collected by plaintiff as rents and revenues in the operation of the property described since it was levied on by the writ of sequestration?" Answer: "$1940.41." (12) "What amount has the plaintiff expended on the property as repairs reasonably necessary for the preservation of the property?" Answer: "$4381.70." (13) "Do you find from a preponderance of the evidence that the writ of sequestration issued against J. Balie Finks was sued out maliciously and without probable cause?" Answer: "No." (14) "Do you find from a preponderance of the evidence that the writ of sequestration issued against the defendants the Hickmans was sued out maliciously and without probable cause?" Answer: "No.", (15) "What amount of damages, if any, do you find from a preponderance of the evidence that the defendant J. Balie Finks has suffered resulting directly and approximately as exemplary damages as the result of the malicious suing out of the writ of sequestration, if you find it was so sued out against him?" Not answered. (16) "What amount of damages, if any, do you find from a preponderance of the evidence that the defendants W. C. Hickman and Frankie Hickman have suffered resulting directly and approximately as exemplary damages as a result of the malicious suing out said writ of sequestration, if you find it was so sued out against them ?" Not answered. (17) "Did the plaintiff Fitzpatrick at the time he made the affidavit for sequestration against defendant Finks on February 4, 1928, have a reasonable ground to fear that defendant Finks would injure said property, or waste or convert to his own use the rents, fruits, timbers or revenues thereof?" Answer: "Yes." (18) "Did plaintiff Fitzpatrick at the time he made the affidavit for sequestration against the defendants W. C. Hickman and wife in May, 1928, have reasonable grounds to fear that defendants Hickman and wife would injure said property, or waste or convert to his own use the rents, fruits, timber or revenues thereof?" Answer: "Yes." (19) "What do you find from a preponderance of the evidence would have been the value of all the net profits, if any, that would have been derived from the use of the property to the defendant J. Balie Finks by such use of same by W. C. Hickman and wife from the date of the levy of the writ against the defendant Finks up to January 1, 1929, had they been permitted to remain in possession thereof, not including the Cotton, if any, raised by Davenport nor the use of the club house?" Answer: "$50." The judgment (rendered July 20, 1929) was in favor of Fitzpatrick and his partners R. M. Bailey and L. P. Burns against J. Balie Finks for $22,730.57 (the amount, principal, interest, and attorney's fees of the note sued upon), and costs of suit and foreclosing the mechanic's lien and lien of the trust deed on described land existing to secure the payment of the note; in favor of said Fitzpatrick, Bailey, and Burns against the Dallas Club, J. W. Gough, W. C. Hickman and Frankie Hickman for costs incurred by reason of their being parties to the suit; and in favor of said W. C. Hickman and Frankie Hickman against said J. Balie Finks for $219.50 and costs incurred by them in their cross-action against said Finks. The appeal was prosecuted by J. Balie Finks alone.
T. C. Hutchings, of Mt. Pleasant, John T. Gano, and W. N. Coombes, both of Dallas, and R. T. Wilkinson, Jr., of Mt. Vernon, for appellant.
R. G. Storey and Baskett DeLee, all of Dallas, and Seb P. Caldwell, of Mt. Pleasant, for appellees.
The contention first presented in appellant's brief is that it was error not to sustain pleas in abatement urged by him on the ground that the note sued upon was not due at the time the suit was commenced, and on the ground that Fitzpatrick was not then the owner of the note. The assignments presenting the contention are overruled. It appeared that the note was due and that Fitzpatrick was the legal holder and owner thereof at the time the amended petition on which the cause was tried was filed. It is plain, therefore, that appellant had no right to complain of the ruling and no other right than to have the costs, which had accrued in the suit at the time said amended petition was filed, taxed against said Fitzpatrick. Dalton v. Rainey, 75 Tex. 516, 13 S.W. 34; Bryan College Interurban Ry. Co. v. Kropp (Tex.Civ.App.) 197 S.W. 733; 1 Tex.Jur. 686; Brown v. Arhelger (Tex.Civ.App.) 198 S.W. 811; O'Brien v. Mayer (Tex.Civ.App.) 143 S.W. 240; Swenson v. Heidenheimer (Tex.Civ.App.) 52 S.W. 989.
It is next contended that the court erred when he overruled appellant's motion to strike out Fitzpatrick's second amended original petition filed February 4, 1928, and when he overruled appellant's motion to quash the writ of sequestration issued the same day on the prayer therefor in said petition. The ground of the motion first mentioned was that the petition was filed while the court was in session without leave to file it having first been obtained. We think the effect of the court's act in overruling the motion was to determine Fitzpatrick was entitled to file it. Thomas v. Young, 5 Tex. 253; Haynes v. Rice, 33 Tex. 167; Connell v. Chandler, 11 Tex. 249; Hopkins v. Seay (Tex.Civ.App.) 27 S.W. 899; Morrissey v. Jones (Tex.Civ.App.) 24 S.W.2d 1101. The grounds of the motion to quash the writ of sequestration, so far as specified in appellant's brief, were (1) the fact that said second amended original petition, containing the prayer for the issuance of the writ, was filed without leave as stated above; (2) the fact that, whereas it appeared that the note sued upon was owned by Fitzpatrick, R. M. Bailey, and L. P. Burns as partners, the affidavit and bond for the writ were the affidavit and bond of Fitzpatrick alone; and (3) the fact that the third amended original petition, on which the trial was had, did not contain a prayer for a writ of sequestration. As to the one first mentioned of the grounds of the motion for quashing the writ, we have just held that appellant had no right to complain because the court overruled his motion to strike out the second amended original petition. But had the holding been to the contrary, we see no reason why, if that petition was not entitled to be treated as an amendment of Fitzpatrick's original petition, it should not have been treated as sufficient as an application for the issuance of the writ of sequestration. The statute authorized the issuance of such a writ during the progress of the suit. Article 6840, R.S. 1925. The second ground also was untenable, we think. As the legal owner and holder of the note Fitzpatrick had a right to maintain a suit thereon in his name alone, and such right carried with it a right to sue out the writ of sequestration in his name alone. Brown v. Arhelger (Tex.Civ.App.) 198 S.W. 811; 8 C.J. 822. The third ground of the motion was as plainly untenable as the others, we think. The fact that the amended petition on which the trial was had did not contain a prayer for the writ which had already been issued, certainly was not a reason why the writ should be quashed.
In his fourth supplemental petition, Fitzpatrick alleged that he had a "constitutional lien" on the property, covered by the mechanic's lien and trust deed lien he claimed, to secure the sum he sued for, and prayed that, in the event it should be determined he was not entitled to a foreclosure of said mechanic's and trust deed liens, the constitutional lien he claimed be foreclosed. In his third supplemental answer appellant objected to said allegations in said fourth supplemental petition on the ground that they stated a new cause of action inconsistent with that set up in the original and amended original petitions, and complains because his objection (which he called a "plea in abatement") was overruled. The court did not undertake in his judgment to foreclose the "constitutional lien" pleaded, and it is not apparent how appellant was injured if the court erred in his ruling as claimed.
The contentions in appellant's brief (1) that it appeared the note sued upon was made by him "merely as an accommodation" to Fitzpatrick; (2) that "the undisputed testimony established" that Fitzpatrick was to sell memberships in a club and pay himself the amount of the note out of the proceeds of the sales; and that "the undisputed testimony developed" that Fitzpatrick had "released the defendant Finks from any liability" on the note and "was bound to look only" to one Clements for payment thereof, are overruled. As we construe the evidence it not only does not support such contentions, but strongly preponderates to the contrary.
It is insisted that in rendering judgment the court failed to allow appellant credits he was entitled to on account of rents, revenues, etc., derived by Fitzpatrick from the property sequestered while he was in possession thereof by virtue of a replevy bond he gave the officer who levied the writ. In support of the contention, appellant refers to the finding of the jury that the amount so derived by Fitzpatrick was $1,940.41, and to a bill of exceptions showing that Fitzpatrick as a witness testified that he had expended, in the upkeep of the property during that time, $733. That testimony taken alone would indicate that Fitzpatrick's receipts were $1,207.41 in excess of his expenditures; but Fitzpatrick testified further that the revenues from the property were not enough to pay expenses he incurred in caring for it. In view of that testimony we do not think it should be said the court and jury did not have a right to conclude that Fitzpatrick expended only $733 in the upkeep of the property. It is insisted further that the recovery allowed Fitzpatrick and his partners so far as it was for attorney's fees was not warranted by evidence, in that it did not appear therefrom, it is asserted, that the note sued upon was ever placed in the hands of attorneys for collection and in that, it is asserted further, it did not appear what would have been a fair and reasonable amount to allow for making such collection. It was stipulated in the note that Finks should pay 10 per cent. additional on the amount thereof if it was placed in the hands of an attorney for collection or if it was collected by suit. Fitzpatrick, as a witness, testified he turned the note over to an attorney for collection, and the trial court and this court know the purpose of this suit was to collect the note. Guffey v. Bank (Tex.Civ.App.) 250 S.W. 301.
Other contentions made by appellant in his brief and not disposed of by what has been said are believed to be also without merit, and are overruled.
The appellees Hickman and wife, in a brief they have filed, complain because they were not allowed a recovery of anything against Fitzpatrick, and because they were allowed a recovery of only $219.50 against appellant Finks. As they (the Hickmans) did not prosecute an appeal from the judgment, nor file assignments of error covering their contentions, they are not entitled to have this court review the judgment in the respects it affects them.
The judgment is affirmed.