53 S.W.2d 795 | Tex. App. | 1932
This suit was instituted in the district court of Dallas county by appellant, Jerry A. Burton, against Baldwin Motor Company, a corporation, in trespass to try title to recover a certain tract of land situated in said county. Appellant alleged that said motor company was claiming title under a sheriff's deed to the property sued for, executed in pursuance of a levy and sale under an execution issued out of the county court of Smith county, Tex., in a suit in which said Baldwin Motor Company was plaintiff and H. F. Kahle was defendant, and in which judgment was rendered against said Kahle as principal and appellant and another as sureties on said Kahle's replevy bond. The Baldwin Motor Company was thereafter adjudged a bankrupt, and appellee, Edward F. Perry, was appointed trustee of its estate. He, with leave of the court, made himself a party defendant in the cause in lieu of said corporation. He pleaded not guilty, and by cross-action sought judgment against appellant for the title and possession of the land sued for.
The case was tried to the court, and judgment rendered that appellant take nothing and that appellee, as trustee in bankruptcy of the estate of Baldwin Motor Company, bankrupt, recover of appellant the title and possession of the land sued for.
The statute provides that when a suit in which property has been sequestered and replevied is decided against the defendant therein, final judgment shall be rendered against all the obligors on the replevy bond, jointly and severally, for the value of such property. R.S. article 6852. The several sureties on Kahle's replevy bond, by signing the same, became parties to the suit, and neither notice nor pleading was required to support a judgment against them for the value of the property replevied. Mills v. Hackett,
To this excerpt our Supreme Court added the following: "The principle applicable to the point before us is that the custodian of the records is the proper officer to prove that a record does not exist." Edwards v. Barwise,
Appellant having wholly failed to rebut the presumption that the court made some order effectively disposing of the surety Tipton, such presumption must be given full force and effect.
The judgment of the trial court is therefore affirmed.