Brown v. Collins

77 Tex. 159 | Tex. | 1890

COLLARD, Judge.

—The judgment of the Court of Appeals in the suit of C. P. & S. Y. Collins v. Linn & Co. was final and needed only such orders by the County Court as were necessary to give it effect. What, then, was the judgment of the Court of Appeals? The County Court had, on motion of Linn & Co., quashed the distress warrant and released the property levied on, but gave judgment for the plaintiffs’ rental debt.

The Court of Appeals stated the case and decided it as follows: “ This suit was commenced by distress for rent due, the property distrained being on the rented premises when the warrant was returned to the County Court, and the plaintiff filed a petition declaring on an account for rent and asking for a foreclosure of his lien. The court quashed the distress warrant, presumably for the reason that the warrant and the citation did not issue at the same time, and rendered judgment for plaintiffs for their debt, but released the goods taken in distress.

“This was error. This court has repeatedly held that though the distress proceedings may be invalid, the plaintiff under the statute is entitled to have a foreclosure of his landlord’s lien. In so far as the judgment below ordered a release of the property levied on, it is reversed, and judgment will be here rendered that the lien be foreclosed, and in all other respects the judgment is affirmed.”

Upon receiving the mandate, in which was copied the order of the. Court of Appeals and which followed the opinion, the County Court rendered judgment for the amount of the rent debt (8301), foreclosed the lien by virtue of the levy of the warrant as it was at the time of the levy, and granted order of sale.

It is evident that the order of the County Court quashing the distress pro ceedings was affirmed by the Court of Appeals, the effect of which was to place the property in the same position it was before the levy was made. There could be no lien by virtue of a levy of a quashed writ, and the seizure thereunder became inoperative. The effect of the quashal was the same as if there had never been a levy or writ. Latham v. Selkirk, 11 Texas, 314. The lien foreclosed was the landlord's statutory lien upon the goods found on the rented premises. The writ having failed, the claimant was not bound by his bond, and there could be no trial of the right of prop-property under the statute. Plaintiff merely has a judgment for the amount of his debt and a foreclosure of a rental lien on the goods that had been levied on while on the rented premises.

This was the result of the judgment as rendered by the Court of Appeals and as affirmed by that court. Rev. Stats., arts. 4822, 4832 et seq., in title 92; Latham v. Selkirk, supra.

■■ We conclude the judgment of the court below should be reversed and the cause dismissed.

Reversed and dismissed.

Adopted April 29,1890.