Wallace & Waggener v. H. C. Terry, 4 Willson 87

Opinion by White, P. J. § 58. Claim bond; measure of damages in suit on; res adjudicata; case stated. “The history of this action briefly is this: On the 12th day of December, 1887, appellants, by their attorneys, King & Whittle, purchased from one L. N. Echols, in the city of Sulphur Springs, the goods mentioned in Exhibit A in the plaintiff’s petition. Said goods were purchased to satisfy a debt due to appellants by said Echols. Said goods were delivered by said Echols to said King & Whittle as attorneys for appellants.

On the same day, after the sale and delivery of said goods to said King & Whittle, appellee had levied upon said goods an attachment issued by J. W. Crabtree, J. P., precinct No. 1, Hopkins county, on an alleged debt due appellee by one Gr. M. Tribble. At the time of the levy of said attachment said goods were in the possession of said King & Whittle, as attorneys of appellants.

On the 14th day of December, 1887, appellants filed their affidavit and claim-bond for the trial of the right of property under the statute, which bond and affidavit was taken by the proper officers with the other necessary papers and filed in the county court of Hopkins county. That the first term of said court which convened thereafter was on the 19th day of December, 1887. The second term of said court convened thereafter on the 20th day of February, 1888. That H. O. Terry, appellee, failed to file his tender of issue in said cause until the day after appearance day at said second term.

That thereupon said cause was dismissed from said court on demurrer of appellants, upon the ground that appellee had not filed his tender of issue within the time prescribed by the statute; and judgment was then and there rendered against appellee for the costs therein expended.

That afterwards appellee instituted his suit in said court, from which this appeal is taken, against Wallace & Waggener and their sureties on said claim-bond, to which suit appellants answered by general demurrer, general denial and a special plea of res adjudicata, setting up said dismissal and judgment against appellee for costs as a bar to this action, and also a special plea making a tender of issue showing their right to the possession of and title in said goods.

The general demurrer of appellants to appellee’s petition was overruled by the trial court, and appellee’s special exception to appellants’ special plea of res adjudicata was sustained by the court, and said plea was stricken out, to which ruling appellants excepted, and appellee’s special exceptions to appellants’ special plea making a tender of issue, claiming possession of and title to the goods at the time they were levied upon, was overruled by the court; and so, upon the issues thus made up, the plaintiff’s original petition and appellants’ general denial and special plea making a tender of issue of their right to said goods, the parties went to trial, submitting the matter in controversy to the court, without the intervention of a jury, whereupon the court, upon the hearing of the -case, rendered judgment for appellee.

Appellants appealed from .the judgment.” This statement of the case we have taken from appellants’ brief. We have referred to the record, and find that the statement is incorrect in a most important particular. The case for the trial of the right of property was not dismissed because the plaintiff failed to appear and file his tender of issues on appearance day of the second term of court. [E.

S., art. 4836.] On the contrary, the judgment of dismissal, as set out in the answer of appellants in this suit, recites that the case was dismissed on special exceptions made by appellants to the date of the filing of the appellants’ (claimants’) bond; and, in his conclusions of fact and law, the judge finds that “the suit was dismissed by claimants at the February term of the county court, 1888, on demurrer of claimants alleging the claimants’ bond was filed too late.” He also finds that “the demurrer was not resisted by plaintiff, H. O.

Terry.” So that it appears that the trial of the right of property was dismissed at the instance of appellants, and for failure to have their own bond filed in time. There was no trial on the merits, and no disposition of the property made by the judgment, which was simply a judgment for costs. Appellants, the claimants, did not establish their claim and right to the property, nor was any further effort made by them to do so. [Zurcher v. Krohne, 63 Tex. 118.] In Garrity v.

Thompson, 67 Tex. 1, it is said: “ If the claim is not sustained, no matter for what reason, the bondsmen were bound to return the property or pay its value, and they did neither.” When property is not returned as provided for and within the time (ten days) prescribed by statute [art. 4845, R.

S.], the remedy is against the principal and sureties on the claim-bond. [67 Tex. 5.] Some immaterial errors may have been committed on the trial of this case in the lower court, but from our investigation and consideration of the entire record we have found no such error as would warrant a reversal of the judgment, and it is therefore affirmed. December 18, 1889. (Feb. 15, 1890.) Scott & Levi, for appellants.