Brunson v. Dawson State Bank

• Decision Date: 16 January 1915
• Docket Number: (No. 7210.)
• Citation: 175 S.W. 438
• Parties: BRUNSON et al. v. DAWSON STATE BANK.
• Court: Texas Court of Appeals

175 S.W. 438

BRUNSON et al. v. DAWSON STATE BANK.

(No. 7210.)

Court of Civil Appeals of Texas. Dallas.

January 16, 1915.

On Motion for Rehearing, April 10, 1915.

Error from Navarro County Court; R. R. Owen, Judge.

Action by the Dawson State Bank against G. W. Brunson. Judgment for plaintiff, and defendant and the sureties on his replevin bond bring error. Affirmed.

J. S. Callicutt and Hawkins Scarborough, both of Corsicana, for plaintiffs in error. Luther Johnson, of Corsicana, for defendant in error.

TALBOT, J.

The defendant in error, hereinafter called plaintiff, brought this suit January 20, 1912, against G. W. Brunson, one of the plaintiffs in error, hereinafter referred to as defendant, to recover on two promissory notes, one for $152.50, dated August 19, 1911, payable October 1, 1911, with interest at the rate of 10 per cent. per annum after maturity and providing for 10 per cent. attorneys' fees, and the other for $202, dated September 30, 1911, payable November 1, 1911, and providing for the payment of a like interest and attorneys' fees. The suit was also to foreclose a chattel mortgage given by the defendant August 19, 1911, on two mules, which recited, in effect, that it was executed by the defendant to secure the payment of the first above-mentioned note, and any other claim or demand that should thereafter arise and become due by the defendant to the plaintiff, and authorized the plaintiff or its officers upon default in the payment of the defendant's indebtedness, or any part of the same at the maturity thereof, to sell or cause to be sold said mules either at public or private sale, with or without notice to defendant or the public. The plaintiff alleged and the evidence warrants the finding that, at the time of the execution and delivery of the said note of $202, it was stated and expressly understood and agreed between the defendant and the plaintiff's cashier that the mortgage theretofore executed by the defendant on the two mules did and should secure the payment of said $202 note. Plaintiff, at the institution of the suit, sued out a writ of sequestration, alleging in its affidavit therefor that the mules covered by its mortgage were of the value of $100 each, and of the total value of $200. This affidavit was made by E. W. Munsey as the agent of the plaintiff, and alleged that the two mules upon which its mortgage lien existed were in the possession of the defendant in Navarro county, Tex., and that the affiant feared the defendant would remove them out of said county during the pendency of the suit. The sequestration bond executed by the plaintiff was signed by the said E. W. Munsey and B. B. Munsey as sureties, and the writ of sequestration was issued and immediately levied on the two mules described in the mortgage. On January 26, 1912, the defendant replevied the mules by giving bond in the sum of $400, which recited that the mules had been valued by the officer levying the writ of sequestration, at $100 each, with plaintiffs in error J. S. Callicutt and E. O. Call as sureties on said bond. The condition of the replevin bond is that the defendant G. W. Brunson will not remove the two mules out of Navarro county, Tex., during the pendency of the suit, and that he will have them forthcoming to abide the decision of the court, "or that he will pay the said value thereof in case he shall be condemned so to do." The defendant moved to quash the sequestration proceedings, and this motion was by the court overruled. Defendant then pleaded to the jurisdiction of the court, alleging that the $202 sued on by plaintiff had been paid off and discharged before the filing of the suit, and that as the first note mentioned was less than $200, and the value of the two mules covered by the mortgage sought to be foreclosed was stated in the affidavit to be $200, the amount in controversy was below the jurisdiction of the county court. Defendant further pleaded a general demurrer, general denial, and specially under oath that he never executed any lien upon the two mules seized under the writ of sequestration to secure the payment of the $202 note, and that it was never intended by plaintiff and defendant that said $202 note should be secured by any mortgage or lien whatever on said mules. He alleged that at the time of the execution of said $202 note it was secured by six bales of cotton, the receipts of which were turned over to the plaintiff at the time, and that that was the security on which he borrowed $202 from the plaintiff, evidenced by the second note sued on. He alleged and claimed that the real contract between plaintiff and defendant was that the mortgage on the mules was to secure no other indebtedness except the $152.50 note, and that the statement in the mortgage to the effect that said mortgage might secure indebtedness which might thereafter arise was not called to defendant's attention and was not agreed to by him, and that there was no contract or trade between plaintiff and defendant that the mortgage on the mules was to secure any indebtedness other than the $152.50 note. Defendant also pleaded that both notes were usurious, and that said $202 note was fully paid off and discharged by the deposit of six bales of cotton with the plaintiff for that purpose. Defendant also by plea in reconvention sought to recover of the plaintiff and E. W. Munsey actual and exemplary damages for the alleged wrongful and malicious suing out of the writ of sequestration, charging, in substance, among other things, that the officer making the levy of said writ at the instance of the plaintiff carried the mules levied on a distance of 22 miles, placed them in a wagon yard in Corsicana and kept them five or six days; that while said mules were in the possession of the officer they were damaged to the extent of $25 by improper care and want of feed; that one of said mules was further damaged $25 while in the possession of the officer who levied the writ of sequestration, by a piece of stick being stuck in his head. Defendant also asked for $1.50 per day for the loss of the use of his mules, $2.50 per day for lost time in replevying the mules, $5 for his trouble and time in taking the mules back to his home. Defendant also prayed for $50 attorneys' fees and the further sum of $150 as exemplary damages.

The court instructed the jury that the defendant was not entitled to recover anything on his plea in reconvention, and submitted the issues arising on the plaintiff's case in a general charge. The trial resulted in a verdict in favor of the plaintiff against the defendant for the sum of $412.62, and in favor of the plaintiff against J. S. Callicutt and E. O. Call, sureties on defendant's replevin bond, for the sum of $350, being the value of the two mules as found by the jury. Judgment in accordance with the verdict was rendered February 8, 1913, and the case is now before this court on writ of error.

The first, second, and third assignments of error relate to the question of jurisdiction raised by the defendant's pleadings. We do not think the case should be reversed for either of the reasons urged in these assignments. The two notes sued on aggregate more than $200 and less than $1,000, and hence it appears upon the face of the plaintiff's petition that the county court had jurisdiction of the amount in controversy. The plea of the defendant that the $202 note sued on had been paid did not of itself lessen the amount put in controversy by the plaintiff's petition. It simply raised the issue of the payment of said note as alleged by defendant and left in controversy the whole amount sued for by plaintiff. Besides, the defendant reconvened and prayed for damages against the plaintiff for the alleged wrongful and malicious suing out of the writ of sequestration in the sum of $272.50 and this of itself conferred jurisdiction upon the county court to hear and determine all issues involved in the suit. Phelps v. Parker, 30 S. W. 365; Hardeman v. Morgan, 48 Tex. 103; Joyce v. Hagelstein, 163 S. W. 356. If, therefore, because of the alleged value of the mules in plaintiff's pleadings, such charge was error, the error, for the reasons stated, was harmless. For the same reasons the error of the court, if error, in charging the jury that if they believed the value of the mules did not exceed $200, still if they believed plaintiff brought this suit in good faith, believing the defendant owed it more than $200, to find in favor of the jurisdiction of the court was not prejudicial to defendant. But it is held by our Supreme Court that in a recovery on a replevin bond the plaintiff is not limited to the value of the property replevied as alleged in the petition, and that the value of sequestered property is required to be stated in the affidavit for the writ as a predicate for the amount of the sequestration bond and not as the limit of recovery in case of replevy by the defendant. Therefore the plaintiff may recover the actual value of the property as fixed by the jury. Watts v. Overstreet, 78 Tex. 571, 14 S. W. 704. Neither was the statement of the value of the mules in the plaintiff's petition conclusive of their value. The evidence showed beyond controversy that the value of the two mules exceeded the sum of $200.

The court did not err in refusing to give the special charge requested by the defendant relating to the issue of the payment of the $202 note sued on and made the basis of the defendant's fourth assignment of error. This charge, in so far as it stated correctly the law applicable to the facts, was fully covered by the court's general charge, and for that reason, if no other, it was properly refused. The charge, however, should not have been given because it erroneously told the jury that, if they found that the $202 note had been paid in the manner referred to therein, then the county court had no jurisdiction to render a judgment against the defendant on the $152.50 note sued on, as the amount...