64 Tex. 542 | Tex. | 1885
On the 14th of February, 1872, James B. Frost sued John D. Smith upon a moneyed demand, and caused a writ of attachment to issue, which was levied upon seven bales of cotton. The cotton was replevied by Smith, Henry and Frazier becoming sureties upon his replevin bond. Judgment was rendered against Smith on the 13th of May, 1875. The bond was lost between the date of the judgment and the time when it should have been indorsed forfeited, the cotton not having been delivered according to the stipulations of the bond. Frost transferred his judgment against Smith and claim against the sureties to Thos. Poland, who, on the 8th of July, 1879, commenced this suit upon the judgment against Smith, and upon the bond against his said sureties. The object of the suit was to substitute the bond and to obtain a judgment of forfeiture upon it, and also a judgment against Smith, Henry and Frazier for the full amount of principal and interest due upon the judgment rendered against Smith on the 13th of May, 1875. Thos. Poland having died, W. H. Poland, his administrator, prosecuted the suit, and Smith having been dismissed from the cause, the appellees were the only defendants below when the suit was determined. They pleaded limitation of four years by way of special demurrer, which, having been sustained by the court, and the plaintiff having declined to amend, final judgment was rendered for the defendants. From this judgment an appeal is taken to this court, and the error assigned is the ruling of the court upon the special demurrer.
The suit, so far as these appellants are concerned, is upon the replevin bond. Its object is to obtain a judgment of forfeiture upon the bond for the full amount recovered against Smith in the former judgment. The substitution of the bond is a mere preliminary step towards its enforcement. If we treat the prayer for substitution as granted, the case will stand as a suit upon a replevin bond which has never been declared forfeited, as prescribed by the statute, and hence not a judgment against the sureties signing it; for when a paper is substituted it stands in the same condition as when it was lost or destroyed.
Treating the case as-a suit upon the original bond, without forfeiture indorsed upon it, which if; is, the only question is, Was it barred by limitation? Whether we date the accrual of the cause of action from the day the judgment was rendered, or from the time when the forfeiture might have been indorsed upon the bond (which was ten days thereafter), more than four years had elapsed between its accrual and the time of the commencement of this suit.
Had the bond been forfeited in the manner prescribed by statute, it would have had the force and effect of a judgment; and, under the previous decisions of this court, would not have been barred until after the expiration of ten years. Austin v. Townes, 10 Tex., 24; Burton v. Miller, 14 id., 299.
But, without the declaration of forfeiture, it was a mere contract for the delivery of-property, which had not been complied with, and hence became a recognized demand against the obligors for the full amount of the principal, interest and costs of the judgment against Smith. As such demand, it came within the province of the above clause of the act of limitations, and the court properly held that suit upon it was barred. The judgment below must be affirmed.
Affirmed.
[Opinion delivered October 27, 1885.]