292 S.W. 914 | Tex. App. | 1927
This is a suit by the Western Indemnity Company against F. G. Alderete, administrator of the estate of Isaac Alderete, deceased, and, upon trial without a jury, judgment was rendered that the plaintiff take nothing. This is the second appeal in the case; the former opinion being reported in 278 S.W. 265. The *915 pleadings of the parties and the trial court's findings are sufficiently shown in the former opinion rendered, except it should be added that the last trial was upon an amended petition which contains the additional allegation that the plaintiff had made "diligent search and effort to locate and find said automobile in El Paso county, Tex., and that it has been unable to do so, and, according to the best information it has been able to obtain, said automobile was carried into the republic of Mexico, and was last heard of, according to its best information, at Paral, in the state of _______, republic of Mexico, which is approximately ________ miles from the city of El Paso, Tex."
The prayer was as follows:
"Plaintiff prays that it may have proper process requiring the defendant, F. G. Alderete, administrator of the estate of Isaac Alderete, deceased, to show cause why a mandatory injunction should not be issued against him requiring him to surrender, or cause to be surrendered, said automobile into the hands of the said Seth B. Orndorff, sheriff of El Paso county, Tex., and disclose to the said sheriff and to the plaintiff herein the whereabouts of said car, and the condition it is in, in order that the car may be appraised, and evidence introduced on the hearing of this cause touching the present value of said automobile.
"And upon final hearing thereof the plaintiff prays judgment against the defendant, F. G. Alderete, administrator of the estate of Isaac Alderete, deceased, in the sum of $272.41, together with eight per cent. per annum, interest thereon from May 29, 1923, until paid and all costs of court," and for general relief.
The trial court's findings upon the last trial contain these additional findings:
"I find that shortly after determination of test case No. 6355, heretofore mentioned in these findings, that the plaintiff herein, acting by and through its local representative, A. W. Bittick, under the direction and advice of its counsel, C. H. Kirkland, began making endeavors to locate the automobile described in three findings; that they interviewed the defendant, his agents, and relatives, made inquiries in Deming, as well as in El Paso, Tex., and that the information so received by said representative would indicate that the car had been carried into the Republic of Mexico.
"I find that plaintiff's local representatives in El Paso continued such hunt and investigation up to and within a short time of the trial of this case; and I find, as a matter of fact, that they did all an ordinary, prudent person would have done under such circumstances.
"I find that their local representatives know nothing about the whereabouts of the car at the time of this trial, or of its value; I also find that the defendant, F. G. Alderete, knows nothing about the car, or its value at this time."
In Watts v. Overstreet,
"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 tanto. The verdict of the jury will determine this value. Rev. Stats., art. 4502; Cook McElvy [McElvey] v. Halsell,
In McLeod Artesian Well Co. v. Craig, 43 S.W. 936, by one of the Courts of Civil Appeals, it was said that the rule announced in Watts v. Overstreet was not of invariable application, and that the measure of recovery upon the bond would vary with the facts and circumstances of the particular case. The question again came before the Supreme Court upon a certified question in Luedde v. Hooper,
"The language used in article 4876, `the value of the property replevied,' has been construed by this court to mean the market value at the time of the trial. Watts v. Overstreet,
The rule thus announced, with one exception, has been followed ever since so far as we are advised. Wood v. Fuller,
In all of these cases the question arose in the original suit where the character of the judgment to be rendered was governed by the statute. As was pointed out in Wood v. Fuller, supra, the rule is based upon the statutory provisions relating to the character of the judgment which shall be entered against the obligors in the original action. The present action is an independent one based upon a bond, and the character of the *916
judgment to be entered is not governed by the statute. Indeed, it has been held that the judgment need not follow the statute with reference to the right to return the property replevied when it has been disposed of by the parties who replevied the same, or for some other reason it cannot be produced. Herrera v. Marquez, supra; Herder v. Clothing Co. (Tex.Civ.App.)
The only case which we have found where a different measure of recovery was applied in the original action is Crenshaw v Staples,
"The remaining question is: Did the sureties have a right to complain at the action of the court in making their liability depend upon the value of the property at the time it was replevied, and not upon its value at the time of the trial? Under ordinary conditions, where there has been no breach of the replevin bond which prevents a return of the property in satisfaction of the judgment as permitted by law, this contention is correct. Luedde, et al. v. Hooper,
"We conclude that the trial court committed no error in holding that the value of the property at the time it was replevied was the proper measure of damages."
The present suit is an independent action, based upon a breach of the replevy bond given by Estavillo and his sureties in the original action.
Justice Brown, in the opinion which he rendered in Luedde v. Hooper, was careful to limit his ruling as to the proper measure of damage to cases when the question arose in the original suit, and under the statute and upon the facts here presented by the present appeal it would be wholly inadmissible to hold that the recovery against the surety upon the replevy bond is to be measured by the value of the property replevied at the date of the trial. The bond was an undertaking by the defendant in the main action to have the property forthcoming, and his sureties guaranteed that he would do this. Said defendant has failed so to do, and by his action has rendered it impossible for the plaintiff to show the value of the property at the time of the trial, and we are therefore of the opinion that the value of the property at the date it was replevied is the proper measure of recovery in this case. This value the trial court found to be $250, and judgment for that amount will be here rendered, with interest at the rate of 6 per cent. per annum from May 29, 1923, as prayed for.
The present appeal is upon a record different from that presented by the former appeal. Upon that appeal there was neither pleading nor finding of fact that would authorize the application of a measure of recovery other than that laid down in Luedde v. Hooper.
The judgment of the lower court is reversed and here rendered against the appellee, to be classified and paid in due course of administration of the estate of his intestate.
Reversed and rendered. *917