Reagan v. Copeland

1. Failure of District Judge to Sign Statement of Facts. — The failure of the district judge to sign a statement of facts will not be considered on appeal unless complaint against the action or omission be brought up in the assignment of errors. 3. Same — Practice. — Mandamus suggested from the Supreme Court when the judge below fails or refuses to certify a statement of facts. 3. Continuance — Application Insufficient. — See application for continuance ¡held insufficient. 4. Refusal to Hake New Parties—Practice.—Under article 1809, Revised Statutes, it was proper to refuse to allow parties to be made when the application is made, by them after an application for continuance has been overruled. Application to make parties must be made before the cause is called for trial.

Appeal from Cherokee. Tried below before Hon. James I. Perkins. This is an appeal from a judgment for the value of goods seized by appellant as United States marshal and sold by him under execution. Reagan filed a motion for continuance as follows: “ B. O. Uopelandv. R. B. Reagan.—Suit pending in Cherokee County, Texas. “And now comes defendant Reagan and states to the court that he can not go safely to trial at this time for the following reasons, to-wit: That the cause of action alleged is for damages on account of the levy of certain executions issued out of the Circuit Court of the United States for the Eastern District of Texas, by affiant as United States Marshal of said Eastern District of Texas. The said judgments and executions were nine in number, described in the pleas filed in this cause and now referred to as part hereof. That plaintiff filed his first suit in the same cause of action, No. 3172, in this court and against this defendant, Deere, Mansur & Co., T. R. Bonner, and J. H. Bonner, about .April 7, 1888. That said cause was removed to the Federal court at Tyler, and in June, 1888, it was dismissed out of said court by the plaintiff. That afterwards plaintiff filed the above suit June 11, 1888, upon which service was had. " On December, 1888, his demurrer and prayer to make parties were sustained and granted by this court, as appears by the minutes of this court, to which reference is here made. That before the parties defendant were made by the process on, to-wit, March 5,1889, said plaintiff filed a new suit against this defendant on the same cause of action, and citation duly issued and was served upon him upon the same cause of action as described in the two aforesaid suits and the said citation in the last suit, No. 3198, attached hereto and made part hereof. "Affiant says he now on this 3rd day of December, 1889, learns for the first time that said plaintiff abandoned and dismissed his said suit No. 3198 brought and served on him in 1889, and that plaintiff had fell back on his said suit filed June 11, 1888. That he has good reason to believe that his attorneys did not know of the change of front in plaintiff’s case. “ That preparations were made to meet the said cause No. 3198, wherein it was alleged that the executions issued to and levied by him were issued under and by virtue of two judgments in said United States Court, Nos. 1905 and 1906, in favor of Zabelier & Behan. " That he had prepared to meet that state of case and his attorneys had prepared and filed pleadings therein—that is, in No. 3198—and made ready to meet the evidence in the same. Affiant says that the executions pertaining to the Comer, Fairris & Dial suits were levied and returns made therein while he was in office as United States marshal. That he ceased to be United States marshal on the-day of July, 1889, and turned over all the papers that belonged to his office save and except some that were involved in litigation, which were retained to be used therein; all others were delivered with his office to his successor, Dickerson, who he now believes has the same. "This affiant has had the clerk’s office examined on last night, December 2, 1889, and the same are not on file; and his attorney, W. S. Herndon, who made the inquiry and made the search, and who is now in court, states to affiant that said executions are not in the clerk’s office nor marshal’s office at Tyler, Texas, where affiant kept them. “Affiant says his defense and that of • the parties as principals and surety who indemnified him, as he is advised, depend largely upon the executions levied as aforesaid, and the returns thereon. That affiant did hold and retain those named in plaintiff's suits and expected to use the same till the same were taken from him by law. That he has not nor can not now obtain possession of said executions in time for this trial. But if this trial was postponed for fifteen days, till he could visit the "United States marshal and secure the said executions, he could then go to trial in the cause. “Affiant states he was misled by the several suits of plaintiff, and especially by the last one; that he verily believed when he was served with process in the last suit that the second suit was dismissed or abandoned and ceased to make any efforts to get ready in said suit. That .affiant since he learned that the first had been changed by plaintiff and he was n.ow insisting on his suit Ko. 8177, which was December 2, 1889, he has been unable to get ready by the use of any diligence whatever, and he can not now get ready for trial before fifteen days, as he verily believes. “ That this court, as he is advised, will or may hold till February, 1890, and ample time left to try all cases; he prays that the case be postponed for such period as the court may see fit to enable this defendant to get said executions. Affiant sa,ys he can not procure a certified copy of said executions until he finds the present United States marshal and the executions in his hands or office. “That the most of this evidence was wholly unknown to him till yesterday; that the said executions are not lost nor mislaid, and that it is by no fault of his that the same are not now before the court. That this evidence can be had from no other source known to affiant. That this application is not made for delay, but for the purpose of having said executions as evidence to protect his and the rights of said parties described herein to make defense to said action. “ Whereupon defendant prays that the court postpone this case to a future day of the term for trial or continuance. “R. B. Reagan." Sworn to and subscribed, etc. 'The applicatiou was overruled by the court. Application was then made in behalf of the plaintiffs in the executions interested in the levy, with their bondsmen, to be admitted to defend, and also asking that in event judgment should be rendered against the defendant Reagan that he have judgment over. They adopted Reagan’s defense. This was refused. Trial resulted in a verdict for $970. The plaintiff entered a remittitur for $230.46. Reagan appealed.