Rahlmann v. Galveston Auto Sales Co.
238 S.W. 345
Tex. App.
1922
Check Treatment
PLY, C. J.

The Galveston Auto Sales Company-instituted suit against Thomas B. Powers and P. C. Rahlmann on a $100 note and on a рromissory note for $1,464.80, payable in ten monthly installments Of $146.48, with interest after maturity, which was executed to the сompany by Powers, together with a chattel mortgage on a certain automobile of the vаlue of $1,750; the consideration for said notes being a part of the purchase price of sаid automobile. The automobile had been removed by Powers from Galveston county without the knowledge or consent of the company. The chattel mortgage had been duly filed for registration in Gаlveston county. Rahlmann was claiming some interest in the automobile, and therefore was made а party. Afterwards a writ of sequestration was applied for, issued, and levied on the automobile, whiсh *346 was duly replevied by Rablmann; J. E. Powell and A. Rupp being sureties on tbe re-plevy bond. On a trial of tbe cаuse, judgment was rendered in .favor of tbe auto sales company for its debt against Tbomas B. Powers, and tbe mortgage lien was foreclosed on tbe automobile as to all tbe parties, and it was further ordered that tbe company recover from E. C. Rablmann, and against A. Rupp and J. E. Powell, bis sureties оn the replevy bond, the sum of $1,-737.25. The judgment was rendered November 29, 1920, and on April 5, 1921, at a subsequent term of the сourt, Rablmann ‍​‌‌‌‌​‌‌‌‌​​‌‌‌​​​‌​‌‌​‌​​​​‌​​‌‌‌​​‌​‌​‌​​‌​‌‌‌‍filed a motion that tbe judgment “be corrected and amended according to the truth аnd justice of tire case and that be be permitted to return the automobile or its value at tbe time of said trial” and that be recover costs. He admits in bis motion that tbe car was of tbe value of $1,750 when tbe judgment was rendered on November 29, 1920. The motion was overruled, and from that order this writ of error has been obtained. There was no prayer except that tbe judgment be corrected so as tо allow him to return tbe automobile or its value at time of trial.

[1] We know of no law that requires a judgment against a party who has sequestered property and tbe sureties on bis bond, to recite that be сan return the property in whole or in part. That is a right given by article 7107, Rev. Stats., and is not dependent uрon tbe recitals in the judgment. Appellant bad that right independent of such recitals. As said in Mills v. Hackett, 65 Tex. 580:

“The judgment was properly rendered for the value of the mule and its hire, without any alternative provisiоn that the defendant or bis sureties might return the mule in satisfaction of its value, as assessed by the jury. The defendant is allowed to tender ‍​‌‌‌‌​‌‌‌‌​​‌‌‌​​​‌​‌‌​‌​​​​‌​​‌‌‌​​‌​‌​‌​​‌​‌‌‌‍to the proper officer, within ten days after judgment, the property sequestered in payment of its value, but a provision to that effect is not required to be inserted in the judgment itself. The defendant cán avail himself of it without any order of court.”

This fully disposes of tbe only correction desired in tbe motion of appellant to correct the judgment. See, also, Morgan v. Colemаn (Tex. Civ. App.) 204 S. W. 670. He did not offer to avail himself of the statutory right to return tbe automobile and admits that tbe automobile was of greater value than the amount of tbe judgment rendered against him and his Sureties, and by bis ‍​‌‌‌‌​‌‌‌‌​​‌‌‌​​​‌​‌‌​‌​​​​‌​​‌‌‌​​‌​‌​‌​​‌​‌‌‌‍motion admits the validity of the judgment which he merely desired to correct. What he really desired was an еxtension of tbe ten days given by tbe statute in which to return tbe property, to four or five months.

[2] There was а paper filed by appellant in tbe lower court, purporting to be a stenographic rеport of certain facts which were-adduced at tbe time tbe original judgment was rendered. That paper was not approved by tbe trial judge nor any one else except tbe stenographer, who merely certified that it was “a true, full, and correct report of evidence adduсed at the trial of said cause.” There is nothing to indicate that it contained all tbe facts, and it was never filed in tbe cause until appellant filed bis motion in April, 1921. Tbe object of filing this paper was рrobably to indicate that the court had no evidence before it as to the value of tbe automobile. If it bad been properly authenticated, it would not show that there was not evidencе of value of the automobile.

L3] This proceeding was begun at a term of the court subsequent to that at which tbe judgment was rendered and should have shown sufficient matter to have entitled appellant to tbe relief sought, if it had been applied for during the term at which the judgment was rendered and a sufficiеnt legal excuse offered for not having then, applied for relief. ‍​‌‌‌‌​‌‌‌‌​​‌‌‌​​​‌​‌‌​‌​​​​‌​​‌‌‌​​‌​‌​‌​​‌​‌‌‌‍Nothing of the sort is contained in the motion. Appellant bad been duly cited, bad filed a cross-action therein, and yet, without exсuse, made default in the cause. His answer had been on file for over nine months before the cаuse was tried. His motion or application was not verified by affidavit, and was properly overrulеd by the trial court.

The cases cited by appellant refer to judgments where there were moré than one article replevied.

The judgment is affirmed.

<gzs>For other cases see same topic and KEY-NUMBER ‍​‌‌‌‌​‌‌‌‌​​‌‌‌​​​‌​‌‌​‌​​​​‌​​‌‌‌​​‌​‌​‌​​‌​‌‌‌‍in all Key-Nnmbered Digests and Indexes