B. F. Goodrich Rubber Co. v. Valley Plumbing & Supply Co.

• Decision Date: 04 December 1924
• Docket Number: (No. 121.)
• Citation: 267 S.W. 1036
• Parties: B. F. GOODRICH RUBBER CO. v. VALLEY PLUMBING & SUPPLY CO. et al.
• Court: Texas Court of Appeals

267 S.W. 1036

B. F. GOODRICH RUBBER CO. v. VALLEY PLUMBING & SUPPLY CO. et al.

(No. 121.)

Court of Civil Appeals of Texas. Waco.

December 4, 1924.

Rehearing Denied January 8, 1925.

Appeal from Dallas County Court; T. A. Work, Judge.

Action by B. F. Goodrich Rubber Company against the Valley Plumbing & Supply Company and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Davis, Johnson & Handley, of Dallas, for appellant.

R. L. Stennis, of Dallas, for appellees.

GALLAGHER, C. J.

This suit originated in the county court at law of Dallas county in the form of a summary proceeding by appellant, B. F. Goodrich Rubber Company, against appellees W. T. Vann, sheriff of Cameron county, Tex., and American Surety Company of New York, surety on his official bond, to recover the amount of a judgment recovered by appellant in said court against the said Valley Plumbing & Supply Company, a corporation, in the sum of $976.03. Appellant was plaintiff in said proceeding, and will be so designated here, and said sheriff, appellee herein, will be designated as "the sheriff." Plaintiff alleged as the ground for the recovery sought in these proceedings that the said sheriff had failed to levy upon the property of the defendant in execution a certain alias execution issued out of said court on the judgment aforesaid, and that he had failed to sell such property, and had failed to return said execution within the time specified therefor, and sought to hold the sheriff and his bondsman liable for the amount of said judgment under and by virtue of the provisions of articles 3776 and 3777, Revised Statutes of the state of Texas.

The sheriff and his bondsman alleged in defense of plaintiff's demand that said Valley Plumbing & Supply Company defendant in execution, was insolvent at the time the sheriff received said execution and remained insolvent continuously thereafter, and that a prompt levy and a prompt attempt to advertise and sell the property so levied on would not have resulted in the collection of any sum whatever in satisfaction of said execution, because said defendant in execution shortly thereafter was duly adjudged a bankrupt.

The case was tried before the court, and resulted in a judgment in favor of the sheriff and his bondsman. Plaintiff requested the court to file conclusions of fact and law, and such request was complied with. The case is before us for review on appeal.

Plaintiff recovered said judgment against said Valley Plumbing & Supply Company on January 6, 1922. An alias execution thereon, together with an indemnity bond, was placed in the hands of the sheriff on February 13, 1922. No complaint was made of the sufficiency of said indemnity bond. At the time said execution was placed in the hands of the sheriff he was instructed by letter from plaintiff's attorneys to levy the same immediately upon the stock of goods, wares, and merchandise of the defendant in execution in its possession in the city of Brownsville. Plaintiff's attorneys, on February 21, by telegram, and on February 24, by telegram and by letter to the sheriff, insisted on an immediate levy, and on March 2 telegraphed inquiring what had been done. On March 4th the sheriff telegraphed the said attorneys as follows:

"I closed the doors of the Valley Plumbing & Supply Company this evening at four o'clock."

Plaintiff's attorneys, on March 6th, advised the sheriff by telegram that they presumed the property levied on would be sold in due course after proper advertising, and asked for a copy of notice of sale, and an accurate description of the property levied upon. On March 13th plaintiff's attorneys telegraphed the sheriff that he had not furnished list of the property levied on nor date of sale, and asked that he wire date of sale at once. On March 16th, plaintiff's attorneys telegraphed the sheriff as follows:

"We are looking to you and your bondsmen for any damages resulting from your negligence and inactivity in case Goodrich Rubber against Valley Plumbing Company, and unless you do something definite at once we will begin action against you."

To this telegram the sheriff on March 17th replied as follows:

"Valley Plumbing & Supply Company going into bankruptcy today or tomorrow. I did not advertise to save the creditors expense. There about ten executions with bonds ahead of yours in my hands. Act if you think it proper."

The Valley Plumbing & Supply Company, on March 29, 1922, filed a voluntary petition in bankruptcy, and it was, on the same day, duly adjudged a bankrupt. On May 24, 1922, the sheriff returned the execution to appellant's attorneys, with the following return indorsed thereon:

"Came to hand on the 13th day of February, A. D. 1922, at 12 o'clock m., and executed by forthwith and on numerous occasions demanding payment of the Valley Plumbing & Supply Company of said judgment, and on the 4th day of March, 1922, at 4 o'clock p. m. by levying upon all the property of the Valley Plumbing & Supply Company found in Cameron County, Tex., and said levy and sale thereunder was stopped by Judge Ira Webster, referee in bankruptcy."

No order of the referee staying said execution or any sale thereunder was introduced in evidence. Since whatever injury, if any, suffered by plaintiff resulted from the failure of the sheriff to promptly levy said execution, and promptly advertise and sell the property levied on, and not from failure to return said execution within the time allowed by law, we will confine our discussion to the question of the liability of the sheriff for such failure to promptly levy, advertise, and sell. The duty to promptly levy an execution upon the property of the defendant therein, and to promptly sell such property in satisfaction of such execution, is imposed by article 3776 of the Revised Statutes, which article is as follows:

"Should an officer fail or refuse to levy upon or sell any property justly liable to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days' previous notice thereof being given to said officer and his sureties."

Our Supreme Court has declared that the primary object of this statute is to give compensation to the plaintiff in execution for any injury suffered by him on account of the default of the officer, and that, when no such injury has been sustained, no right to recover exists. The failure of the officer to discharge his duty in the premises renders him and his sureties prima facie liable to the plaintiff in execution for the full amount of his debt, interest, and costs, and the burden is on the officer to overcome such prima facie case by showing that nothing could have been collected on such execution by proper official diligence. Smith v. Perry, 18 Tex. 510, 511, 70 Am. Dec. 295; Vaughan v. Warnell, 28 Tex. 119; Griswold v. Chandler, 22 Tex. 637, 640; Ellis v. Blanks (Tex. Civ. App.) 25 S. W. 309, 310. Mere insolvency of the defendant in execution, within the ordinary meaning of that term, is not sufficient to absolve the officer. He should show that there was no property belonging to the defendant subject to execution within his official jurisdiction out of which plaintiff's judgment, or any part thereof, could have been made. Griswold v. Chandler, supra; Ellis v. Blanks, supra; Hale v. Bickett, 34 Tex. Civ. App. 369, 78 S. W. 531. That the Valley Plumbing & Supply Company, defendant in execution in this case, had property subject to execution in Cameron county is not denied. So the defense relied upon must be sustained, if sustained at all, by the sufficiency of the attempted showing that no part of plaintiff's judgment could have been made out of such property by a prompt levy upon the same and a prompt sale thereof. Such attempted showing consists of a contention of fact that an immediate levy of said execution and prompt action in advertising the sale of the property levied upon would have resulted in the immediate filing by the defendant in execution of a voluntary petition in bankruptcy, and a contention of law that the filing of such petition and adjudication thereon would necessarily have discharged the property levied upon from any lien arising from such levy, and that such property would have necessarily passed to the trustee of the estate of the bankrupt when appointed and qualified, free and discharged of any claim upon the same on the part of the plaintiff by reason of such levy.

The proof submitted in support of said contention of fact consisted in substance of the testimony of the chief deputy in the office of the sheriff that said execution was presented to one Mr. Rowe, manager of the defendant in execution; that he promised to settle as soon as he made certain collections, and that he showed in connection with such promise books containing accounts which he claimed he expected to collect; that...