P. T. Norwood v. Inter-State National Bank of Texarkana, 92 Tex. 268

BROWN, Associate Justice. The Inter-State National Bank of Texarkana sued P. T. Norwood in the District Court of Bowie County to recover certain lumber, and, at the same time, sued out a writ of sequestration, causing the lumber to be seized by the sheriff. Norwood did not replevy the lumber, but the bank gave a replevy bond according to law and took it into its custody and has never returned it to Norwood. At the trial of that case the court entered judgment that the bank take nothing by its suit, but did not assess the value of the lumber.

Norwood executed and delivered to the Inter-State National Bank two notes, one for $4200 and the other for $4542.88. The bank went into voluntary liquidation, and, according to law, selected B. L. Dalby as liquidating agent, who placed the notes of Norwood in the hands of an attorney for collection, and suit was brought upon them in the District Court of Bowie County. By consent of the plaintiff, Norwood was allowed to plead in reconvention in that suit for the value of the lumber taken from him by sequestration in the former suit.

Upon a trial without a jury, the court found in favor of the bank the amount of the notes, with interest, less certain credits to which Norwood was entitled, and 10 per cent as attorney’s fees, and found in favor of Norwood the value of the lumber at the time it was taken under sequestration in the former suit, with 6 per cent interest from that date.

The bank pleaded that the former suit was a bar to the plea in reconvention upon the claim made by Norwood for the lumber, but the court overruled the plea and deducted the value of the lumber, with interest, from the amount found to be due upon the notes, and entered judgment in favor of the bank for the difference, from which judgment appeal was taken by Norwood to the Court of Civil Appeals, the bank assigning errors also.

The Court of Civil Appeals affirmed the judgment of the District Court, except that it held that the value of the property at the time of the trial in the former suit, with 6 per cent interest from that date, was the measure of damages, and so reformed the judgment of the District Court. Each party applied for a writ of error, which was granted to both. The judgment rendered in the first suit between these parties constituted no bar to the right of Norwood to recover from the bank the value of the lumber converted- by it.

Under the facts found by the court, the hank in liquidation could maintain this suit upon the notes against Norwood and recover attorney’s fees upon so much of the notes as was unpaid when placed in the hands of counsel. The claim of Norwood against the bank for damages-on account of the conversion of his lumber did not operate to extinguish the notes pro tanto. Norwood did not seek relief upon-the replevy bond, but brought this-action against the bank, independent of the bond, for damages occasioned by the seizure and conversion of bis property. Portier v. Fernandez, 35 Texas, 535. In the case of Watts v.

Overstreet, 78 Texas, 578, plaintiff sought to-foreclose a lien upon sheep which were sequestered by plaintiff and replevied by the defendant. Plaintiff had a right to judgment against the defendant for the debt and a foreclosure of the lien upon the sheep, also judgment upon the replevy bond for the value of the property at that time. If surrendered, the property would have been sold to satisfy the judgment, which was all the plaintiff had a right to demand of the sureties: if not surrendered, plaintiff would get its then value, presumably as much as would have been derived from the sale.

In the first case between these parties plaintiff sued to recover property then in defendant’s possession, suing out a writ of sequestration under which is was seized, the plaintiff taking it by replevy bond. Plaintiff failed in that suit. The value at the time of seizure, with interest, would compensate defendant — that was what he lost — but the value at the trial would not do so, because he would lose the use of it between the two dates.

In this case the value of the lumber at the date of seizure and at the trial was the same, and the loss to ¡Norwood is only the interest for the intervening time, but there might be a great depreciation in the value of property during the pendency of litigation. There is no reason for applying a different rule to ascertain the damages in case of conversion of property by seizure under writ of attachment to that applied when the seizure is made by writ of sequestration.

In both cases, if unlawful, the property is taken from the owner and applied to the use of the wrongdoer, and the damage must of necessity be the same. The value of the lumber at the time and place the seizure was made, with 6 per cent interest from that date, was a proper measure of damages in this case. Weaver v. Ashcroft, 50 Texas, 427; Blum v. Thomas, 60 Texas, 158; Willis v. Lowry, 66 Texas, 540. The Court of Civil Appeals erred in reforming the judgment of the District Court so as to give interest from thé date of the trial of the former suit instead of from the date of the seizure of the lumber.

It is therefore ordered that the judgment of the Court of Civil Appeals be reversed and the judgment of the District Court be affirmed. Judgment of Court of Civil Appeals reversed. Judgment of District Court affirmed.