Ballinger Nat. Bank v. Bryan

• Decision Date: 04 March 1896
• Citation: 34 S.W. 451
• Parties: BALLINGER NAT. BANK v. BRYAN et al.
• Court: Texas Court of Appeals

34 S.W. 451

BALLINGER NAT. BANK v. BRYAN et al.

Court of Civil Appeals of Texas.

March 4, 1896.

Appeal from district court, Runnels county; J. O. Woodward, Judge.

Action by the Ballinger National Bank against John Bryan, in which Thomas Trammell & Co. intervened. From a judgment in favor of the interveners, plaintiff appeals. Affirmed.

The Ballinger National Bank sued John Bryan on the following promissory note: "Ballinger, Texas, January 6, 1893. Due February 6, 1893. One month after date, without grace, for value received, I promise to pay to the order of the Ballinger National Bank, Texas, twenty-seven hundred and ninety-one and 50/100 dollars, with interest at the rate of 10% per annum from maturity until paid, and 10% additional on amount of principal and interest unpaid for attorney's fees, if placed in the hands of an attorney for collection. [Signed] John Bryan." The note had a credit indorsed thereon of $2,000, paid February 6, 1893. The petition alleged that defendant Bryan was a resident of the county of Nolan, Tex., "but has lately left, and may be found, if still in the state, in the counties of Tom Green, Midland, or Runnels, but his presence or whereabouts is unknown." Plaintiff, on the 8th day of May, 1893, caused writ of attachment to be issued in the suit against John Bryan, directed to the sheriff of Runnels county, commanding him to seize and levy upon property of defendant, John Bryan, if found in the county, sufficient to make the sum of $802.45 and the probable costs of suit. The sheriff executed and returned the writ on the 8th day of May, 1893, showing that he had attached, by virtue of the writ, "1,169 head of sheep, a part of which was branded S on side, and a part of which was branded X on the rump, levied on as the property of John Bryan." The affidavit and bond for attachment were of same date as the filing of the suit. Of the sheep levied on, 809 head were branded S, and 350 head were branded X. Those branded X were replevied by the Tucson Land & Live-Stock Company, leaving only the 809 head branded S in the hands of the sheriff by virtue of the attachment. These were sold by order of the court, as perishable property, to interveners, Thomas Trammell & Co., and the proceeds of the sale, $1,221.59, were deposited with the clerk of the court, except $127.28, retained by the sheriff for his costs. The court ordered the sheriff to turn all the proceeds of the sale over to the clerk. When attached, the sheep were found just over the line in Runnels county, near the line of Tom Green county. March 13, 1894, Thomas Trammell & Co., bankers in Nolan county, by leave of the court, intervened in the suit, claiming that they had a mortgage or deed of trust on the sheep sold by the sheriff, given by Bryan on the 5th day of December, 1892, to them, to secure a debt of Bryan to them of $2,184.08, evidenced by his note of same date, which chattel mortgage or deed of trust, as is alleged, was duly registered in Nolan county, where Bryan then resided. Petition of interveners shows that they filed their suit in the district court of Howard county against John Bryan on their note in 1893, and to foreclose their mortgage lien on the property described in the same, and on the 6th day of March, 1894, obtained judgment against Bryan, on the note, for $2,702.80, with interest at 10 per cent., foreclosing their lien on the sheep, and order of sale according to the tenor of the mortgage; that the cattle described in the mortgage and judgment, other than the sheep, were sold under the order of sale issued according to the judgment, and brought only the sum of $200, the costs of the suit being $24,—leaving a large balance due on the judgment, which has never been paid. They pray for judgment for said $1,221.59, the proceeds of the sale of the sheep, deposited with the clerk, and order to the clerk to pay the same to them, the interveners. The interveners were the purchasers of the sheep at the sale made under plaintiff's attachment.

Plaintiff read in evidence the note sued on, and the attachment levy, as before shown. Interveners read in evidence their note and mortgage, as set up by them, the mortgage reciting that John Bryan was a resident of Nolan county. It included certain cattle, in brands stated, and the sheep, described as "All my sheep, branded either S or V, consisting of about 1,600 head, which I agree shall be held in Nolan and adjoining counties, Texas, during the life of this mortgage." The mortgage was filed and deposited in the county clerk's office of Nolan county, for registration, on December 20, 1892, at 4:15 p. m., and, according to the certificate of the county clerk of Nolan county, as part of the original from which the certified copy was made, "was duly recorded the 20th day of Dec., 1892, at 4:30 o'clock p. m., in the Real-Estate Mortgage Records of Chattel Mortgages, vol. 1, page 62." The original mortgage was duly acknowledged by John Bryan December 5, 1892. The certified copy was made May __, 1893, at which time the county clerk certified that the original was then on file in his office; and it (the original) was on file in the same office a few days before the trial of this case, and there is no testimony tending to show that the original has ever been withdrawn from the clerk's office where filed. This certified copy was sent up with the transcript by order of the court, and will be found on page 15 and pages following of the transcript, with all certificates and acknowledgments, to which we refer. Interveners also read in evidence their judgment against John Bryan, of date March 6, 1894, for $2,702.80, bearing 10 per cent. interest per annum, and for costs of suit, and foreclosure of their chattel mortgage on the cattle and sheep, as alleged by them, giving the same description of the cattle and sheep as is given in the chattel mortgage; the judgment ordering sale in any county in Texas where the cattle and sheep might be found. The judgment was obtained upon citation by publication, the plaintiff in this suit not being a party to that suit and judgment. Also, order of sale on the judgment, of date May 4, 1894, describing the cattle and sheep as in the mortgage, returnable on the 1st of October, 1894. Also, return of sheriff on the order of sale, showing that he received it on the 10th of May, 1894, and executed it by levying on the cattle described, advertising sale by posting advertisements on the 23d of May, 1894, and selling same as required by law on June 5, 1894, to Thomas Trammell & Co., for the sum of $200. The return does not show that it was returned into the court that issued order of sale. Also, sheriff's bill of costs for $11.25, attached to the return. Also, original receipt of Thomas Trammell & Co., showing that they had received from the sheriff $175.20, net proceeds of the sale, which receipt was also attached to the sheriff's return. Interveners also read in evidence the order of sale made in the case at bar, commanding the sheriff to sell the attached sheep, issued upon the ground that the sheep were badly diseased with scab, and were daily depreciating in value, and were in serious danger of waste, and there would be great expense in keeping them until the trial,—the order made the 26th day of May, 1893, in chambers, by the district judge; return of sale, showing the sale of 809 head of sheep on the 6th of June, 1893, after due advertisement, etc., to Thomas Trammell & Co., for $1,221.59, which sum was deposited with the clerk of the court; receipt of the sheriff to Thomas Trammell & Co., dated June 3, 1893, for the $1,221.59; and bill of sale by the sheriff to them of the 809 head of sheep branded S. The testimony shows, without contradiction, that the sheep mortgaged to interveners were in Nolan county when the mortgage was executed; that they were never taken from that county with the consent of interveners; and that John Bryan, the mortgagor, was then residing in Nolan county, where the mortgage, duly acknowledged by him, was filed and deposited with the clerk of the county, and entered of record as stated. The sheep attached by plaintiff are a part of the same identical sheep covered by interveners' mortgage. D. P. Gay, the president of the Ballinger National Bank, plaintiff, directed the levy of the attachment, and at the time knew the mortgage of interveners covered the sheep levied on. The sheep were in Nolan county on the 15th day of April, 1893, whence they were driven away to Tom Green county, and were attached by plaintiff in Runnels county as stated.

An attorney of the court was appointed to represent Bryan, who had been served by publication, and this attorney filed for him demurrers to the pleadings of plaintiff and interveners, and a general denial of all allegations made by them. The court instructed the jury to return a verdict for plaintiff for the sum of $958.79, as against John Bryan, and for interveners for $1,221.59, the amount of money deposited with the clerk of the court, the proceeds of the sale of the sheep. The jury returned verdict as directed. Interveners filed motion to have error in the charge corrected; the court instructing to find for plaintiff for $958.79, instead of $1,054.66, the correct amount. Judgment was so rendered by agreement with defendant's attorney, to bear interest at 10 per cent. per annum. Judgment was also rendered, in favor of interveners, that plaintiff take nothing by the levy of the attachment, declaring that interveners had a superior lien on the sheep at the time of the levy for a greater amount than the money deposited with the clerk, which sum the clerk was ordered to deliver to interveners. It was also adjudged that interveners recover all costs of plaintiff, except that of the motion and order of...