Ross v. Lewyn Martin

NEILL, Associate Justice. The appellees, Lewyn & Martin, brought suit in the District Court of Bexar County against Carl Von Studnitz for debt, and sued out an original attachment, which was levied on certain cigars, tobacco, etc., in the possession of appellant, who filed a claimant’s affidavit and bond for trial of the right of property. In their tender of issues the appellees alleged, that the goods, levied on were the property of Von Studnitz, and as such subject to the levy of the writ of attachment issued in their suit against him; that on the —:— day of November, 1888, Von Studnitz transferred his stock of goods to B. Montefure for the purpose of delaying, hindering, and defrauding his creditors, and placed them in his possession to hold for him, and that the possession of the goods both in Montefure and in appellant was in trust for Von Studnitz. That appellees were creditors of Von Studnitz, and had obtained judgment against him subjecting the goods seized by his attachment to the satisfaction of such judment, which was for the sum of 8359.17 and costs. That appellant had notice of the fraudulent conveyance from Von Studnitz to Montefure and of the invalidity of the latter’s title. Appellant in his tender of issues pleads a general denial; that the attachment by virtue of which the goods were levied on was void on account of the insufficiency of the affidavit therefor; that Von Studnitz was justly indebted to plaintiff; and alleged especially that he was the legal and equitable owner of the property at the time of its seizure under the attachment, and that he owned and held the same by virtue of a bona fide sale to him; that he paid a full consideration for said property, and at the time of the levy was holding the same under a bill of sale from Jake Wolff. There was no error in the court’s overruling appellant’s exception to the affidavit and attachment issued on it, nor in refusing to render judgment for appellant because of the alleged invalidity of the attachment. *595 Our statute provides that an attachment issued without affidavit and bond as the statutes provide, “ shall be abated on motion of defendant.’” Rev. Stats., art. 159. In accordance with this statute, the right to abate an attachment on account of defects in affidavit or bond has been restricted to defendants. Goodbar, White & Co. v. City National Bank, 78 Texas, 461, and authorities cited. Appellant assigns that the court erred in admitting in evidence, over his objections, the following circular: “The world renowned Professor B. Montefure, Jr., the greatest Hebrew sight-seer and most wonderful man on the globe, now on a tour around the world, has arrived in this city, and will give private sittings (to ladies only). He will astonish all who may call to see him. He will give your parents’ names before their marriage, the name of the gentleman whom you love and whom you are to marry. To convince you of his marvellous powers, he will give each one desiring a sitting a free test to prove his wonderful gift. A trial will convince you. He can be consulted on all affairs of life, no matter what trouble. If not satisfactory. pay refused. For a short time only. Number 342 Soledad Street. Office hours, 9 a. m., 2 p. m., 3 p. m., 8 p. m. References: San Francisco Chronicle: 1 The most wonderful man on the globe.’ San Francisco Alta: 1 Never heard or seen his equal.’ Chicago Times: ‘He beats the world.’ Globe-Democrat: ‘ He must be the second Christ.’ Denver Republican: ‘ We have never seen his equal before.’ ” For the reason that it had no bearing on defendant’s good faith and was in its nature calculated to prejudice his rights before the jury. It was through this circular that the great “ Hebrew sight-seer” introduced and made himself known, not to “ ladies only,” but to Yon Studnitz and the people of San Antonio when he arrived in that city on his tour around! the globe, and it was proper that this man who “ beats the world ” should, when the question of good faith in his dealings, through which appellant claims the property, is to be determined, be introduced and made known to the jury in the same way. If such a circular did not furnish intrinsic evidence that its subject was a scoundrel, it was sufficient to put any reasonable, prudent man on inquiry before dealing with him in any matter of importance. Counsel for appellant in their brief do not contend that the pretended conveyance was not fraudulent, or that appellant did not have full notice of its fraudulent character before and at the time of his purchase, if indeed he purchased the goods at all. The record abundantly establishes the fraudulency of the transaction, and that appellant, with full knowledge, attempted to share the fruits of it. The court’s charge, that whatever is sufficient to put a reasonable man upon inquiry is equivalent to-notice, which is assigned as error by appellant, is favorable to him when the record shows that he had knowledge of facts from which no reason *596 able conclusion could be deduced save that the transaction between the professor and Von Studnitz was as fraudulent as fraud could be. Delivered October 11, 1893. The judgment of the District Court is affirmed. Affirmed. Chief Justice James did not sit in this case.