56 S.W. 941 | Tex. App. | 1900
This appeal is from the denial by the judge of the Tenth Judicial District of a motion made by the appellants in the case of Sass Cohen v. Edward Hirschfeld and Arthur Mildenberg to direct the clerk of said court to issue an execution against said Mildenberg de bonis propriis upon a judgment rendered against him "as trustee." In April, 1897, the appellee, Edward Hirschfeld, executed a deed of trust to appellee, Arthur Mildenberg, as trustee for the benefit of certain creditors therein named. Among the property conveyed *397 and delivered to Mildenberg were certain goods that had been sold to Hirschfeld by Sass Cohen. Upon the execution of the deed of trust Sass Cohen rescinded the contract of sale upon the ground of fraud and sued Hirschfeld and Mildenberg for the recovery of the goods. The case was tried by a jury, who returned a verdict in favor of the plaintiffs against the defendants Hirschfeld and Mildenberg for the goods which had been sequestered and replevied by the plaintiffs, and judgment was rendered in favor of the plaintiffs against both of the defendants therefor. It was also adjudged "that the plaintiffs recover of the defendant, Arthur Mildenberg, as trustee, the costs by them in this behalf incurred on account of their suit against the said Arthur Mildenberg, for which they may have their execution." After the expiration of the term of the court at which this judgment was rendered the plaintiffs filed a motion to correct the judgment by striking out the words "as trustee," which the court below overruled, and upon appeal from the judgment of the court overruling that motion this court affirmed the judgment and there is now pending a motion for a rehearing in that case. (Opinion delivered March 1, 1900.) After the affirmance by this court of the judgment of the District Court refusing to correct the original judgment in the manner pointed out the appellants filed the motion to require the clerk of the District Court to issue execution on said judgment to be levied upon the property of Arthur Mildenberg showing that demand had been made of the clerk for such writ and that he had refused to issue the same.
We are of the opinion that the present appeal presents a very different question from the one on the action of the court in refusing to correct the judgment, and the question now is whether or not the use of the words "as trustee" in the judgment limits the execution to such property only as might be in Mildenberg's possession as trustee of Hirschfeld. We do not doubt the personal liability of Mildenberg for the costs of the suit. "The general rule is that if trustees bring suits against strangers, or strangers bring suits against trustees respecting the trust fund, costs will be awarded against the losing party, as in other suits." 2 Perry on Trusts, sec. 891. If they should be compelled to pay costs the amount so paid will be allowed in their accounts if the litigation was just and proper. Hardy v. Call,
Reversed and rendered.