Lem Smith & Co. v. Sweatt

72 S.W.2d 313 | Tex. App. | 1934

Lem Smith Co., a corporation, sued E. P. Sweatt upon open account and sued out a writ of attachment which was levied upon a carbide light plant and fixtures. Smith Co. recovered judgment with foreclosure of attachment lien. Order of sale issued and the plant was sold July 19, 1932, Smith Co. becoming the purchaser. Smith Co. then sold and delivered the plant to John H. Lewis.

This suit is by Ernest Sweatt claiming to be the owner of the plant against Smith Co. to recover the plant or its value.

Upon special issue findings, Sweatt recovered judgment for $218.50, the value of the plant as fixed by the third finding.

The only material issues of fact as to which the evidence conflicts relate to the value of the property and whether E. P. Sweatt or the plaintiff owned the same.

Opinion. The issues requested to be submitted by appellant were properly refused. They related to Irrelevant matters. If submitted and answered as contended for by appellant, a defense would not have been shown against appellee if the property belonged to him.

The erroneous date referred to in the second issue is harmless in view of the fact established by the first finding that prior to the attachment proceedings plaintiff traded certain mares to E. P. Sweatt for the plant. Construed in the light of the evidence, the first finding established that plaintiff became the owner of the plant before the attachment proceedings were instituted. The first finding supports the judgment independent of the second finding.

The third proposition is without merit for the reason that the lien of an attachment attaches only to the interest, if any, of the judgment debtor in the property. If such debtor has no title, none passes by foreclosure of the attachment and sale thereunder. Farmers' Nat. Bank v. Daggett (Tex.Com.App.) 2 S.W.2d 834.

There is evidence to support the finding fixing the value of the plant at $218.50, for which reason the last proposition presents no error.

Affirmed.