78 Tex. 571 | Tex. | 1890
-—This is the second time this eause.has been before the Supreme Court. The suit was originally brought by J. C. Overstreet on three promissory notes for $1000 each and 12 per cent interest per annum; she made A. P. Root, George L. Price, and B. R. Manning parties defendant; sequestered 2000 head of sheep in possession of defendants, upon which she set up a lien. Before the first trial, or during its progress, she took a nonsuit as to defendants Root and Price. The jury gave verdict for defendant Manning, and judgment was rendered for all the defendants, from which plaintiff appealed. The -Supreme Court reversed the judgment, stating in a note to the opinion that “the reversal of the judgment below only applies to that portion of it which is in favor of appellee Manning, and not to that which is in favor of A. P. Root and G. L. Price, the appellant having in the court below abandoned all right to recover against them.” The opinion and statement of the case will be found in 67 Texas Reports, pages 660 to 664, inclusive. It was there decided that plaintiff’s lien was superior to Manning’s right by purchase, for obvious reasons.
Upon the second trial, from which this appeal is taken, judgment was again taken against Watts for the amount of the notes, $4620, and foreclosure of her lien on the Manning half of the sheep, 962 head; also judgment for plaintiff for $3374, the value of the same at $3.50 per head, against Manning, Price, and Root and the sureties on their replevin bond. Price and Root appealed and Manning brought the case up by writ of error.
Appellants and plaintiff in error assign errors separately. We will notice those of appellants first. They say that the court “ erred in rendering judgment against them, because they were in no manner parties to the suit at the time of its rendition.” The replevy bond was a joint bond as principals by the defendants Manning, Price, and Root, and was in the ordinary form, S. J. Conner, W. J. Manning, and J. C. Lynch, sureties, for $6000.
The dismissal of Price and Root on the former trial appears of record in the judgment as follows: “And thereupon the counsel for the plaintiff announced in open court, after the evidence had been closed and during the argument of counsel to the jury, that they would not prosecute this suit further against the defendants A. P. Root and George L. Price, and that
The jury returned a verdict “for the defendant," and judgment was rendered “that plaintiff herein, J. 0. Overstreet, do have and recover of and from defendants E. R. Manning, A. P. Root, and Geo. L. Price nothing by reason of the premises, and that Root and Price do have and recover of and from the plaintiff herein, on her sequestration bond, all their costs expended and incurred by said Root and Price by reason of- the sequestration herein issued against them "and levied on their one-half interest in the sheep."
It is contended by appelleee that the nolle prosequi was only intended to have effect to dismiss the suit against Root and Price as defendants claiming one undivided half of the sheep, and that the dismissal only had that effect, and that it did not affect their liability as joint obligors with Manning on the replevin bond for his claim to the other half.
The judgment is in no way qualified, and no reservation is made therein, and we think it put Root and Price out of court in every capacity in which a judgment could have been rendered against them.
At the time of the dismissal.it was evidently supposed by the plaintiff that these parties were only bound for the value of one-half of the sheep, the half claimed by them as defendants, and so there was an absolute, unconditional judgment rendered in their favor and for their costs, which, on appeal by plaintiff, was affirmed by the Supreme Court. They were never brought back into the suit by any pleading or process, and were in fact not before the court when the last judgment was rendered. Had they been merely sureties on the replevin bond they could have been dismissed as such defendants, or the suit would have abated as against them upon their death. We are not called on to decide the extent of their liability on the bond or to say what effect the dismissal had upon the liability of the sureties who have not appealed. The judgment of dismissal and that plaintiff take nothing or recover nothing against them must be construed to determine the suit as to them. They not being in court after this, the court had no power to render the last judgment against them.
Ho other assignment of error of appellants Root and Price need be considered. We will next notice the assignments of plaintiff in error Manning.
He first complains that the court erred in overruling his motion to quash the writ of sequestration, because the affidavit fails to show who were the defendants in the case, who were in possession of the sheep, or that defendants were in possession.
The petition and affidavit were filed' the same day; the petition stated who the defendants were, and that they were in possession of the sheep.
We think as the sequestration was an ancillary proceeding to the main suit, it was not necessary to state in the affidavit who the defendants were, or that they were in possession, as the petition showed both facts. In this respect the affidavit is to be construed in the light of the petition. The statute nowhere declares that the affidavit shall state the names of the defendants, or that they are in possession. The statutory ground relied on in the affidavit for the writ was the third subdivision of article 4489 of the Revised Statutes, that sequestration will issue “when a person sues for foreclosure of a mortgage or the enforcement of a lien upon personal property of any description and makes oath that lie fears the defendant or person in possession thereof will remove the same out of the county during the pendency of the suit.” The affidavit in this case stated that “ she fears the defendants will,” etc. This was a compliance with the law.
Plaintiff in error also complains that there was a fatal variance in the petition and affidavit and the writ, in that the petition and affidavit describe the debt as $3340 and the writ describes a debt of $3000. It was not necessary that the writ should state the amount of the debt, and such statement was mere surplusage and did not affect it at all. Had the variance been a misdescription of the property to be seized it would have been fatal. Rev. Stats. , art. 4494; Woessner v. Fly, 63 Texas, 198. The writ is required to command the officer charged with its execution to take into his possession the property described in the affidavit—not as in case of an attachment, to seize property of the defendant sufficient to satisfy the debt.
It is also insisted that the court should have quashed the writ because it was made to appear to the court by solemn admissions of record, and by the uncoutradicted testimony of J. C. Overstreet on the first trial, that at the time she filed her petition and sued out the writ she well knew .that A. P. Root and George L. Price were the joint owners with E. R. Manning of said flock of sheep, and were entitled to the possession of the same.
This assignment and the next one, which is similar to it, can not be sustained. On motion to quash, the proceedings in sequestration are tested by their legal sufficiency apparent in the proceedings themselves, and not . on facts that may exist outside of the proceedings. Such facts can only be heard by plea.
Plaintiff in error also complains that there was a variance in the notes as described in the petition and as offered in evidence, the first note offered in evidence having a credit upon it of $175 which was not noticed in the petition, the credit having been erased by drawing pencil lines through it.
If the variance consisted in the credit endorsed on the note and it had been erased, there was no variance. Besides this, copies of the notes, as
There was evidence admitted on the trial showing that the sheep were worth more than the value as alleged by plaintiff in her petition and affidavit at the time they were replevied, and the judgment was for the value of the sheep at $3.50 per head, when the maximum value as alleged in the petition was $1.50 per head.
Error is assigned that plaintiff can not prove the value to be more or recover more than the value as alleged, and that she is estopped from such recovery. The rights of plaintiff on the defendant’s replevy bond do not depend on the pleadings. The value of the property for which defendant and the sureties on his replevy bond may be liable is not the value at the time the petition or affidavit is filed, but at the time of the trial. In satisfaction of the judgment on the bond the property can be returned, and if only a part of it be returned then there shall be a Credit on the judgment pro tan to. The verdict of the jury will determine this value. Rev. Stats., art. 4502; Cook & McElvy v. Halsell, 65 Texas, 1. If the property should enhance in value after the suit and affidavit were filed, it would not be just to allow plaintiff only the value at that time. Since the return of the property will discharge the judgment, and its value can be substituted for the property, it must be estimated at the trial. We see then that there is no need of pleading on the part of plaintiff to fix the value as a predicate for the judgment. The affidavit for the writ must state the value of each article (Eevised Statutes, article 4490, clause 3), but this is not required as the limit .of recovery in case of replevy by defendant, but as a predicate for the amount of plaintiff’s bond for the writ.
If the affidavit should underestimate the value and the bond should be too small, the remedy of defendants would be by plea. Estoppel does not apply.
We conclude that the judgment of the court below against appellants Price and Boot should be reversed and remanded, that the cause against them be dismissed, and that they recover of appellee their costs and the costs of this appeal, except the costs adjudged against them on the motion to strike out the transcript filed by them and Manning; and we further conclude that the judgment of the court below against E. E. Manning should be affirmed.
Affirmed as to Manning.
Reversed as to Price and Root.
Adopted October 28, 1890.