40 S.W.2d 876 | Tex. App. | 1931
W. C. Odle sued Exporters Traders Compress Warehouse Company, Turner Bros., a partnership composed of W. H. Turner and H. L. Turner, and National Surety Company, a corporation, in the justice court to recover one bale of cotton, or its value, which he alleged to be $100. He sued out a writ of sequestration for the seizure of said hale of cotton, and caused the same to be levied thereon by the constable. The parties will be designated as in the trial court. On the trial of the case in said court, plaintiff recovered a judgment against all the defendants for said bale of cotton, or in the alternative for its value in the sum of $91.88. The judgment further recited that said bale of cotton was then in the custody of the constable, and ordered him to surrender the same to the plaintiff. Turner Bros. and the National Surety Company appealed to the county court.
Plaintiff on the trial in the county court sought recovery for the conversion of said bale of cotton, and was awarded a judgment against Turner Bros. and the National Surety Company, jointly and severally, for the sum of $101.69, with interest from the date thereof. The defendant Exporters Traders Compress Warehouse Company having entered a disclaimer in the justice court and again in the county court, it was further ordered that plaintiff recover nothing against said defendant, and that it recover its costs. No reference to the sequestrated cotton, nor disposition thereof was made in such judgment. Defendants Turner Bros. and National Surety Company have appealed to this court.
Plaintiff had at his election two remedies for redress of the injury resulting from the theft of the bale of cotton in controversy in this case. One of such remedies was to sue for the recovery of the specific property. The other was to treat the possession thereof by defendants, and their refusal to surrender the same on demand, as a conversion, and sue for the value thereof. Such remedies were inconsistent, and the assertion of one was necessarily a waiver of the other, except in the alternative that the remedy first sought had proved unavailable. A suit for specific property involves a persistent and continuing claim by the plaintiff of title to the property sued for, and invokes the aid of the court to effect its restoration. A suit for conversion treats the unlawful acts of appropriation by the defendant as having divested the plaintiff of his title and invokes the aid of the court to secure compensation therefor by an award of its value as damages in lieu thereof. 18 C.J. 991, § 4.
In suits for the recovery of specific property, the seizure thereof under judicial process establishes the primary character of the suit, and is wholly inconsistent with a mere alternative demand therefor in event the plaintiff fails to establish a conversion. The record in this case shows affirmatively that the remedy asserted by plaintiff in the justice court was the recovery of the specific bale of cotton claimed by him; that he sued out a writ of sequestration therefor, and caused the same to be seized thereunder, and that the same is still in the custody of the officer who levied such writ. He secured in that court judgment for title to, and possession of, said bale of cotton, and an order directing the officer to surrender the same to him. The record shows affirmatively that such relief was equally available to him in the county court. He, however, in that court abandoned his demand for the recovery of the specific property, and procured a recovery for the value thereof, on the ground that defendants had converted the same. This he should not have been permitted to do. Humble Oil Refining Co. v. Southwestern Bell Telephone Co. (Tex.Civ.App.)
Article 2433 of our Revised Statutes provides, in substance, that where the judgment is for the recovery of a specific article, its value shall be assessed and that the judgment shall be that the plaintiff recover the same, if it can be found, and if not, its value as assessed, with interest at legal rate from the date of such judgment. The value to be so assessed is the value of the property at the date of the judgment. Morris v. Coburn,
Plaintiff by cross-assignments of error complains of the refusal of the trial court to render judgment in his favor against Exporters
Traders Compress Warehouse Company. Plaintiff excepted to the judgment rendered, and gave notice of appeal, but did not file an appeal bond. Exporters Traders Compress Warehouse Company being a coappellee with plaintiff, his cross-assignments of error against it cannot be considered. Gilmer v. Veatch,
*878The judgment of the trial court, as so reformed, is affirmed.