Opinion
No. 3513.
March 25, 1937. Rehearing Denied April 22, 1937.
Appeal from District Court, Uvalde County; P. R. Price, Judge.
Suit by the Union Packing Company, Inc., against H. L. Perkins and others, wherein statutory notices to nonresidents were issued and served upon defendants. From an adverse judgment, defendant Mrs. Mary Iola Perkins appeals.
Reversed and remanded.
On June 26, 1933, the Union Packing Company, a California corporation, brought this suit in the district court of Uvalde county against H. L. Perkins and wife, Mary Iola Perkins, and their sons William G. and Lee A. Perkins, all of whom reside in California. The petition declared upon an open account for goods, wares, and merchandise sold and delivered in Los Angeles, Cal., to the defendants doing business under the name of H. L. Perkins Sons. The petition alleges the sales were made on various dates between April 5 and April 22, 1932, both inclusive, and the balance due was alleged to be $1,465.68. It was further alleged that a deed from H. L. Perkins to Mrs. Perkins dated July 12, 1928, filed for record April 11, 1932, conveying land in Uvalde county, was a voluntary conveyance executed in fraud of creditors. The same allegations were made respecting deeds from William G. and Lee A. Perkins conveying land in said county dated April 6, 1932, filed for record April 11, 1932. Plaintiff further alleged it was causing a writ of attachment to be issued and levied on said lands.
Plaintiff prayed judgment establishing its debt, that said deeds be set aside as fraudulent and void as to it, and judgment foreclosing its attachment lien.
Statutory notices to nonresidents were issued and served upon defendants in California. July 18, 1933, plaintiff filed affidavit for attachment, setting up that H. L., William G., and Lee A. Perkins were justly indebted to plaintiff in the sum of $1,465.68, and that said defendants had disposed of their property to the defendant Mary Iola Perkins for the purpose of defrauding their creditors. August 26, 1933, attachment bond payable to all defendants was filed and upon the same day an original attachment was issued. On the same day the writ was levied upon the lands involved.
Mrs. Perkins moved to quash the attachments for alleged defects in the affidavit.
She also filed plea in abatement which was overruled.
August 29, 1935, Mrs. Perkins' motion to quash the attachment was sustained.
January 25, 1936, plaintiff filed another affidavit for attachment setting up said indebtedness of H. L., William G., and Lee A. Perkins, and that they had disposed of their property to Mrs. Perkins with intent to defraud their creditors. The same day writ of attachment issued and was levied January 27, 1936, upon the lands involved.
March 9, 1936, Mrs. Perkins moved to quash the second writ. She also filed second plea in abatement and an amended answer.
March 9, 1936, the court overruled Mrs. Perkins' demurrers, her second plea in abatement, her motion to quash the second attachment, and rendered judgment setting aside as fraudulent and void as against plaintiff the two deeds of William G. and Lee A. Perkins, and found the defendants H. L., William G., and Lee A. Perkins justly indebted to plaintiff in the sum of $590.45 up to April 11, 1932 (the date said deeds were filed for record), and established the attachment as a lien against said lands, foreclosed said lien, and ordered the lands sold to pay said sum of $590.45.
The court found the merchandise was furnished to the defendants other than Mrs. Perkins.
It was also found as a fact that the consideration recited in the deeds from William G. and Lee A. Perkins (love and affection) was truly recited in said deeds; that said deeds were delivered with intent to hinder, delay, and defraud plaintiff in the collection of its debt, and Mrs. Perkins had notice of such intent.
Mrs. Perkins appeals.
G. B. Fenley and Atlas Jones, both of Uvalde, for appellant.
Ditzler H. Jones, of Uvalde, for appellee.
Those assignments are overruled which attack the fact findings of the trial court above stated. Such findings are supported by competent evidence.
Appellant presents the point that her pleas in abatement should have been sustained because plaintiffs claim had not been reduced to judgment; all parties were nonresidents, and defendants had not been served with citation, and the principal defendants, H. L., William G., and Lee A. Perkins, had not entered their appearance in the cause.
Under the practice in this state a simple contract creditor may sue the debtor; attach property conveyed by the debtor in fraud of creditors, and in the action join the vendee; have the conveyance set aside and the attachment foreclosed upon the property. Stevens v. Cobern, 109 Tex. 574, 213 S.W. 925; Snodgrass v. Brownfield State Bank (Tex. Civ. App.) 251 S.W. 567; Cassaday v. Anderson, 53 Tex. 527; Shirley v. Ry. Co., 78 Tex. 131, 10 S.W. 543; Dittman v. Weiss, 87 Tex. 614, 30 S.W. 863; Arbuckle Bros., etc., Co. v. Werner, 77 Tex. 43, 13 S.W. 963; Citizens' State Bank v. McShan (Tex. Civ. App.) 172 S.W. 565.
The nonresidence of all the parties to this litigation presents no reason why the nonresident plaintiff is not entitled to the same right of action and remedy to enforce the same in the courts of this state. Ward v. McKenzie, 33 Tex. 297, 7 Am.Rep. 261.
The fact that the court in this case had no jurisdiction over the persons of the principal defendants, H. L., William G., and Lee A. Perkins, and for that reason could not render a personal judgment against them upon their debt, is unimportant. The nonresidence of a defendant is one of the grounds which authorizes the issuance of a writ of attachment. Article 275, subd. 2, R.S.
The issuance of the writ in this case and its levy upon the land gave the court jurisdiction as in actions in rem with power to render judgment establishing the plaintiff's debt, setting the deeds aside, foreclosing the attachment lien upon the land, and ordering such land sold in satisfaction of the debt. 33 Tex.Jur., Process Notice, § 43.
Appellant pleaded the two-year statute of limitations. She assigns error to the overruling of the plea, citing cases holding that the filing of a suit against a nonresident does not suspend the running of the statute. Lynch v. Ortleib, 87 Tex. 590, 30 S.W. 545; Zarate v. Ateca (Tex. Civ. App.) 99 S.W.2d 628, and cases there cited.
Those cases were actions in personam.
Here the action is in rem, and jurisdiction over the res acquired within the two-year period.
The quashing of the first attachment on August 29, 1935, did not operate to abate the suit, for the land had not been replevied, and under article 303, R.S., it remained in the hands of the sheriff pending final disposition of the case. The order quashing the attachment conformed to the statute, wherefore jurisdiction over the res was not completely lost, and was entirely restored by the subsequent attachment issued in a reasonable time and again levied upon the same land.
The first attachment was merely a defective process, but operated to suspend the running of the statute of limitations. In this connection see August Kern, etc., Co. v. Freeze, 96 Tex. 513, 74 S.W. 303.
Appellant's motion to quash the second writ should have been sustained because the bond upon which it was based was less than double the debt sworn to be due in the affidavit for the writ. Article 279, R.S.; East, etc., Co. v. Warren Son, 78 Tex. 318, 14 S.W. 783.
H. L., William G., and Lee A. Perkins are the principal defendants in the action, out appellant is also a defendant, and it is sought by plaintiff to subject to the payment of its debt land which the other defendants have conveyed to her. She therefore had the right to move to quash the attachment because of the insufficiency of the bond. The Leader, Inc., v. Elder Mfg. Co. (Tex.Com.App.) 39 S.W.2d 880; Nail v. Compton (Tex.Com.App.) 55 S.W.2d 1028.
Appellant presents a number of other propositions, none of which are regarded as showing reversible error. It is deemed unnecessary to discuss the same.
The overruling of the motion to quash the second attachment is the only reversible error shown by the record.
Reversed and remanded.