45 S.W. 564 | Tex. | 1898
The Court of Civil Appeals have certified to this court the following explanatory statement and question:
"A distress warrant was sued out by appellee against appellant in the sum of $193.50, under which the sheriff seized a stock of goods worth several hundred dollars, greatly exceeding the amount of the debt, but all subject to the landlord's lien. It was adjudicated in the justice court, where the distress proceeding was had, and from which no appeal was taken, that only the sum of $171.35 was due for rents.
"This suit was brought in the District Court against the plaintiff in the distress proceeding to recover damages for a wrongful and excessive levy. The district judge held that the judgment of the justice court adjudicated that the rent sued for was due at the time the distress warrant was levied, and instructed a verdict for the appellee.
"This ruling we held to be erroneous, and ordered a reversal of the judgment, but as our jurisdiction is not final, and the cause is remanded for a new trial, we are urged by the appellee to certify this question to your honors for decision, and, as was done by us in the case of Stiff v. Fisher,
"The question certified, then, is:
"Whether the excess of $22.15 in the amount sued for, above that which was due for rents, should be treated as rendering the affidavit substantially untrue, and consequently as causing an abuse of the distress process? And in addition, if not included within the question, whether there can be an excessive levy though the officer seizes much more goods than are reasonably required to pay the rent, where he seizes only such goods as the law gives the landlord a lien upon?"
We understand the first question to be, does the fact that $22.15, which could not have properly been made the basis of distress proceedings, was included in the affidavit render defendant herein liable for such damages as plaintiff herein may be able to show that he sustained *53
as the result of such inclusion? The bond required by Revised Statutes, article 3241, is, that plaintiff and his sureties will pay defendant "such damages as he may sustain in case such warrant has been illegally and unjustly sued out." If the inclusion of the $22.15 was both illegal and unjust it breached the statutory bond, and the question must be answered in the affirmative, whether the suit be upon the bond or not. The statute prescribes the grounds and the procedure for distress warrants. A warrant based upon a false ground or sued out without a substantial compliance with the requirements of the statutes would be illegal because not authorized by law. So if the ground be false in part and true in part, the warrant would be "illegally sued out" in so far as it was based upon such false ground. Stiff v. Fisher,
We understand the second question to be, if the warrant be sued out for an amount and in the form authorized by the statute but is levied. upon more of the goods subject to the landlord's lien than is reasonably necessary to satisfy the claim, can the landlord be held liable for such damages as the tenant may show that he suffered by reason of the seizure of such goods as were not necessary to satisfy the claim? We are of opinion that this question must be answered in the negative. The statute gives the lien upon all the property. It follows that the landlord has the right to a foreclosure of such lien upon it all. He may resort to an ordinary suit for that purpose. Bourcier v. Edmondson,