78 Tex. 682 | Tex. | 1890
—This suit was brought by appellee to recover of appellants damages for the breach of the condition of a bond given to procure the release of certain personal property levied upon by virtue of a distress warrant. In that proceeding appellee was plaintiff and appellants William and R. A. Jacobs were defendants. The writ was made returnable to the County Court, where judgment was rendered against the defendants therein and the sureties on the bond. This judgment, on appeal to the Court of Appeals, was reversed as to the sureties and dismissed as to them, upon the ground that the bond was not conditioned as the statute provides. The obligation given in that suit is the foundation of this action, and is made payable upon condition that if the defendant is condemned in the action, he or some other person for him will return the property levied upon or its value to satisfy the judgment that may be rendered against him, together with interest thereon from date. The bond contained a description of the property and recited that it had been appraised by the sheriff at $500. There was no evidence as to the value of the property other than that appraisement. The judgment in the first suit in the County Court was for $385. In the present suit the court below gave judgment against the obligors for $384.38.
There was error in rendering judgment for the plaintiff without evidence of the value of the property. Whether the sheriff’s appraisement be sufficient to authorize a summary judgment upon a statutory bond given in order to replevy property seized by virtue of a distress warrant, we need not here inquire. The bond being only a common law obligation is not aided by the statute. As to this suit the sheriff’s appraisement is res inter alios acta, and is not evidence for or against any one. The value for which the obligors in the bond made themselves liable is the value as established by the rules of evidence known to the common law.
In Jones v. Hayes, 27 Texas, 1, this court said in regard to a similar obligation: “Upon proof of a breach of the condition of the bond and of the value of the property, the party in whose favor the bond is executed is entitled to recover from the obligors the value of the property,” etc.
. Without passing upon the second assignment, we deem it sufficient to say, in view of another trial, that the plaintiff’s damages are the value of the property at the time it should have been delivered after the judgment was affirmed as to the original defendants in the Court of Appeals, less the costs of its sale under execution, together with interest on the remainder from that date to the time of the trial at 8 per cent per annum, unless that sum exceed the amount of the original judgment with interest
The bond was not void as being wrongfully demanded under color of office. It is settled in this court that such a bond is good as a common law obligation. Jones v. Hayes, supra; Bank v. Lester, supra.
The judgment of the County Court, which was finally affirmed as to the original defendants, recognized the landlord’s lien and did not expressly waive it. Not having been waived it was not lost. The obligation was not to return the property or pay its value in the event the lien was foreclosed, but in the event the defendants in the original suit were “condemned ” in the action. We take it that this means that the bond was to become obligatory in the event they were cast in the suit.
It may' be that the failure of the justice to issue citation at the same time he issued the distress warrant may have been such an irregularity as upon proper motion would have vacated the warrant, but it did not render it void. If it had been quashed the bond may have gone with it, and there would have been at least plausibility in appellants’ suggestion of fundamental error. But the distress warrant is not subject to attack in this collateral proceeding.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered December 2, 1890.
