Frieberg, Klein & Co. v. Elliott & Wright, Case No. 5280

Case No. 5280 | Tex. | Jul 1, 1885

Walker, P. J. Com. App.

We are of opinion that the court erred in that portion of the charge that is complained of under the fourth ground assigned as error.

The charge is predicated on the idea that the property, when it was levied on under the defendants’ attachment, was not subject to levy because it was in the custody of the law. The plaintiffs had the property in their possession when the- defendants’ attachment was levied on it by virtue of the oath and statutory bond which they had regularly filed in the proceeding to try the right of property as against the attachment suit of J. Hochstadter & Co., which attachment had been levied on the property previous to the’date of the defendants’ attachment suit. Being thus in possession of the property, it wTas effectually removed and withdrawn from the custody which the law had held of it whilst it was under seizure by virtue of Hochstadter & Co.’s attachment. When the plaintiffs gave the bond and received from the sheriff the property, the bond furnished to J. Hochstadter & Co., the obligees thereof, the security for their debt, which their levy had given them on the property, it stood in the place of the property, and the lien on the property derived from the levy upon it is gone. The property is no longer in the custody of the law, and it is subject to be levied on, as before the levy, to satisfy the debts of other creditors; and, even if there did remain a lien upon it, by reason of such levy, that consideration would not preclude another creditor from subjecting it to the payment of his debt, subject, of course, to such lien. See Sparks v. Pace, 60 Tex., 299.

The utmost extent of the judgment, where the claimant in the trial of the right of property fails to maintain successfully his claim, is against him and the sureties on his bond for the value of the property, with legal interest thereon from the date of the bond; the court does not render a decree subjecting the property to sale. R. S., art. 4843.

The claimant in such case has the option to surrender the property within ten days from the rendition of the judgment in satisfaction of the judgment, but he is not compelled to do so, nor is the property charged by virtue of the decree with a lien for the payment of the debt. See art. 4845, R. S.

Under the proposition of law involved in the court’s charge on this subject, it would result that the claimant would be placed in a more favorable condition, in so far as exempting the property from levy is concerned, by giving a bond and taking the oath to try the right of property when it has been seized by the sheriff on attachment, than if he left it under seizure without taking any steps to release it and to try the right of property; for it is clear and indisputable, that when the property is in the sheriff’s custody under levy of attachment or execution in behalf of a creditor, any other creditor or creditors may, by virtue of executions or attachments put into such sheriff’s hands, cause them to be levied on the same property, subject, of course, to the preference rights of the first attaching creditor; the doctrine of custodia legis having no application to such state of case. See Freeman on Executions, secs. 135, 267. The proposition contained in the charge cannot be harmonized with such inconsistent results as the above illustration demonstrates must ensue, if the charge is to be maintained as correct law.

The error of the court in the charge given was one that necessarily must reverse the judgment, as under it the jury could not, under the evidence, have found otherwise than as they did find, whatever may have been their views as to the other issues in the case.

We are of opinion that the judgment be reversed and the cause remanded.

Reversed and remanded.

[Opinion adopted Hay 26, 1885.]