Marx v. Lange, Levy & Co.

Delany, J. Com. App.— The first assignment of error is that the court erred in permitting the plaintiffs to recall the claimant’s witness, H. Marx, after he had been examined by the claimant in rebuttal and the testimony had closed, in order to lay a predicate for his impeachment. In matters like this, so much is left to the discretion of the court that a judgment would not be reversed unless there was some abuse of the discretion to the prejudice of the party complaining. R. S., 1298. The second assignment complains of that part of the charge in which the jury are told that the proof in support of Mrs. Marx’s claim to the property must be “ clear and abundant.” The phraseology may be objectionable, but that is hardly enough to reverse the judgment. The third, fourth and fifth assignments question the charge of [549] the court, and, we think, correctly. Mrs. Marx insisted that these goods were her property, and were not liable to her husband’s debt; that she had invested $500 in a stock of goods and had commenced business in her own name and in her own right; that she had kept about that amount invested in the business, and out of the profits had supported her family and had paid off a charge upon her homestead of $400. Mow the court told the jury that if she had so invested the $500 of her separate property, it would be protected against her husband’s creditors “so long as it may be invested in said business.” This qualification was unfortunate. The money was exempt, not because it was invested in' the business, but because it was the separate property of Mrs. Marx. She might have withdrawn the whole of it any day, and have closed up the business, without forfeiting the exemption. After having properly told the jury that the gains and profits of the business became community property and liable to execution, the judge proceeded as follows: “5tb: The jury will determine from the evidence what sum, if any, her separate property, was invested by Mrs. Marx. You will charge her with any sum, proceeds of said mercantile business, withdrawn and otherwise invested; and of the goods levied upon, you will allow her the balance of her investment in the value of said goods,— not to include any part of those purchased on a credit. These last mentioned, and any surplus over her investment of the corpus as before ascertained, if any, you will find as liable to this execution.” In addition to its obscurity, this charge is objectionable because not applicable to the evidence. There is nothing in the record to show that Mrs. Marx had withdrawn any portion of her original “ investment of the corpus,” as the charge seems to infer. She testified that out of the profits of the business she had paid $400 upon a debt due for her homestead. Mow this sum of $400 was community property, and if the creditors had gotten hold of it, they might lawfully have appropriated it to the payment of their claims. Bub suppose they fail to get their hands upon it; can they indemnify themselves by taking the same amount out of the principal? That seems to have been the view of the court, and it is certainly what was accomplished by the verdict and judgment. The jury found that the goods were subject to the levy, to the amount of $430. It is éasy to see where this sum came from, when we remember that the goods levied on amounted in value to $530, and that $400 was paid by Mrs. Marx upon the homestead. The creditors of Marx, [550] therefore, had only to wait until the profits of his wife’s business, appropriated to the uses of the family, should equal the sum invested by her, and then they could take the entire stock. In the case of Braden v. Gose, 57 Tex., 37, it was held that the interest accruing on a note, the separate property of the wife, becomes community property and is liable for the husband’s debts. Now let'us suppose that Mrs. Marx, instead of investing her money in goods, had loaned it at a high rate of interest and had appropriated the proceeds to the support of the family or to the purchase of a homestead. Would a creditor of the husband, who had failed to get the interest, be allowed to seize a part or the whole of the principal? We think not. In our opinion judgment should not have been rendered against the husband, N. Marx. A judgment already existed against him for the debt, and the only effect of this judgment xvas to make him liable for the costs and the penalty, for xvhich he was in no sense responsible. Our opinion is that the judgment should be reversed and the cause remanded. Reversed and Remanded. [Opinion adopted May 13, 1884.]