Eames v. Kaiser

STATEMENT BY MR. CHIEF JUSTICE FULLER.

This action was originally commenced in the district court of Tarrant county, Tex., by Samuel Kaiser against H. B. Claflin & Co., alleged to be a firm composed of plaintiffs in error and H. B. Claflin and L. Levinson & Co., another firm, composed of L., Michael, and Max Levinson, all averred to be citizens of New York, to recover damages for the wrongful issue and levy of two writs of attachment against Kaiser, one in favor of H. B. Claflin & Co., and the other in favor of L. Levinson & Co. These attachment suits were commenced in the circuit court, and the affidavits upon which the writs issued alleged that Kaiser 'was about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors.'

A citation was served by copy, with a certified copy of the petition, by the delivery thereof to a member of each of the defendant firms in New York on July 17 and 18, 1883, under articles 1230 and 1234 of the Revised Civil Statutes of Texas. 1 Sayles' Civil St. Tex. p. 418.

September 20, 1883, the defendants filed a plea to the jurisdiction, and also moved to quash the process; and, with said plea and the motion to quash, filed general and special demurrers and a general denial. On the same day defendants filed petition and bond for the removal of the suit to the circuit court of the United States, and it was accordingly removed on the 21st of September. The original attachment suits of Claflin & Co. and L. Levinson & Co. were pending in the circuit court, and in the case commenced by Claflin & Co. Kaiser had pleaded his damages in reconvention; and, after this suit was removed into the circuit court, Claflin & Co. moved that Kaiser be required to elect which suit for damages he would prosecute, and, the motion being granted, Kaiser elected to prosecute this independent action. On the 21st of January, 1884, Kaiser moved the court to quash the plea of Claflin & Co. and Levinson & Co. to the jurisdiction, and strike out their motion to quash, and on the 28th of that month the motion was sustained as to Claflin & Co. and overruled as to Levinson & Co., the court being of opinion that the plea and motion had been waived by Claflin & Co.'s motion to require plaintiff to elect; and thereupon the plea to the jurisdiction was quashed, and the motion to set aside the service was stricken out as to Claflin & Co. Threafter Claflin & Co. filed an amended answer containing demurrers and a general and special denial. Kaiser demurred in his turn, and denied the averments of the amended answer by a supplemental petition.

The cause, having been tried, resulted in a verdict for the plaintiff, assessing his damages at $20,057.23 principal, and interest at the rate of 8 per cent. per annum from November 17, 1882, being $8,293.49, making a total of $28.350.72; and judgment was entered upon the verdict. A motion for a new trial was made and overruled.

The bill of exceptions stated, among other things, 'that on the trial of the above cause the plaintiff, Kaiser, being upon the stand as a witness for himself, and having testified that his stock on July 1, 1882, was of the value, at cost, of 22,807 dollars, and that he bought in July & August, 1882, 51,747 dollars' worth of additional goods; having also testified that from July 1 to Nov. 17, 1882,-the latter being the date of the levy of attachments upon his merchandise,-he had sold at retail 12,000 dollars' worth of goods; that he had sold at wholesale to Sapowski Bros., whose credit in New York was not so good as Kaiser's, 33,000 dollars' worth of goods at wholesale; to Keersky, 5,162 dollars' worth; to May, at wholesale, 1,207 dollars' worth; that on the day before his stock of merchandise was attached the said Sapowski Bros. owed him 13,815 dollars, plaintiff having drawn on him for large sums in favor of other creditors, & that said indebtedness was put in the shape of negotiable notes on the day said attachment was levied, or on the next day,-was then, on cross-examination by defendant's counsel, asked what he had done with said notes. To this question the plaintiff's counsel objected, on the ground that what had transpired after said attachment was levied was immaterial & irrelevant. This objection was sustained by the court, and the defendants excepted.'

Other exceptions were also taken, not material to be stated here.

Sawnie Robertson and M. L. Crawford, for plaintiffs in error.

A. H. Garland and Heber J. May, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.