Burkett v. Simmons Hardware Co.

• Decision Date: 09 June 1932
• Docket Number: No. 1242.,1242.
• Citation: 52 S.W.2d 675
• Parties: BURKETT et al. v. SIMMONS HARDWARE CO.
• Court: Texas Court of Appeals

52 S.W.2d 675

BURKETT et al. v. SIMMONS HARDWARE CO.

No. 1242.

Court of Civil Appeals of Texas. Waco.

June 9, 1932.

Rehearing Denied September 15, 1932.

Appeal from Dallas County Court; John A. Rawlins, Judge.

Summary proceeding on sheriff's bond by Simmons Hardware Company against Nathan B. Burkett and the National Surety Company. From judgment for plaintiff, defendants appeal.

Affirmed.

Royce A. Oxford, of Plainview, for appellants.

Fred J. Dudley & associates, of Dallas, for appellee.

ALEXANDER, J.

This is a summary proceeding brought in the county court at law of Dallas county by appellee, Simmons Hardware Company, against Nathan B. Burkett as sheriff of Hale county and the National Surety Company as the surety on his official bond, to recover the amount of a certain judgment previously recovered by appellee in said court against W. A. Brown in the sum of $504.29. After appellee recovered said judgment against Brown, it caused an alias execution to issue thereon directed to the sheriff of Hale county and placed the same in the hands of Burkett as such sheriff. On February 26, 1931, Burkett levied the execution on, and took possession of, a stock of merchandise belonging to Brown of the value of $3,500 and advertised same for sale. Thereafter on February 28, 1931, Brown filed a voluntary petition in bankruptcy and on the same day was adjudged a bankrupt. The trustee in bankruptcy immediately demanded of the sheriff the possession of the merchandise and threatened to file suit for same unless possession thereof was delivered to him. The sheriff, in order to avoid litigation, and believing that it was his duty to do so, delivered the goods to the trustee in bankruptcy, and consequently never made a sale thereof. It does not appear that the referee in bankruptcy entered any order staying the execution, or a sale thereunder or directing the trustee to take the property from the possession of the sheriff or that he ever undertook to adjudicate the right of the trustee to take charge of the property as against the sheriff. The appellee sought to hold the sheriff and his bondsmen liable for the amount of its judgment against Brown under and by virtue of the provisions of Revised Statutes, article 3825. Trial was before the court without a jury and resulted in a judgment for the appellee against the sheriff and his bondsmen and they have appealed.

Revised Statutes, article 3825, provides: "Should an officer fail or refuse to levy upon or sell any property subject 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."

The primary object of the above statute is to give compensation to the judgment creditor for any injury suffered by him on account of the default of the officer in the performance of his duty. Such default on the part of the officer makes him prima facie liable for the full amount of the judgment, with interest and costs. The officer may avoid liability by showing that he was justified in failing to enforce the execution or that no injury resulted to the judgment creditor by reason of his default, but the burden is on him to show such defense. Smith v. Perry, 18 Tex. 510, 70 Am. Dec. 295; Vaughan v. Warnell, 28 Tex. 119; Griswold v. Chandler, 22 Tex. 637; Ellis v. Blanks (Tex. Civ. App.) 25 S. W. 309; Goodrich Rubber Co. v. Valley Plumbing & Supply Co. (Tex. Civ. App.) 267 S. W. 1036, par. 1.

The appellants' first contention is that the sheriff was justified in surrendering the possession of the property to the trustee in bankruptcy and in failing to make the sale, and in support thereof present the proposition that, upon Brown's adjudication in bankruptcy, the lien created by the levy was discharged and the title to all of Brown's assets, including that previously levied upon by the sheriff, automatically passed to the trustee in bankruptcy and the sheriff was bound to surrender the possession of the goods to the trustee. In this we think the appellants are in error. If the lien created by such levy was discharged and the sheriff's right to possession destroyed by the bankruptcy proceedings, it must have been by virtue of 11 USCA § 107 (f), which reads in part as follows: "That all levies * * * or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy * * * or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt. * * *"

It will be noted that, under the provisions of the above statute, it is only when the execution debtor is actually insolvent at the time the levy is made that the lien created thereby is discharged. It was formerly held that, when an execution lien was obtained within four months prior to the filing of...