Cabell v. Floyd

• Citation: 50 S.W. 478
• Parties: CABELL et al. v. FLOYD et al.
• Decision Date: 05 April 1899
• Court: Texas Court of Appeals

50 S.W. 478

CABELL et al. v. FLOYD et al.

Court of Civil Appeals of Texas.

April 5, 1899.

Appeal from Dallas county court; Kenneth Foree, Judge.

Action by A. B. Floyd and others against Ben E. Cabell and others. Judgment for plaintiffs. Defendants appeal. Reversed.

Chas. I. Evans, for appellants. Harry P. Lawther, for appellees.

FISHER, C. J.

August 20, 1894, the Hollenberg Music Company brought suit in the justice's court against John Morris to recover the balance of the purchase money due on a piano,—claiming a lien on the piano,—and on same day sued out a writ of sequestration; and the constable seized the property under that writ. The said John Morris gave the constable a replevy bond in the sum of $200, payable to the Hollenberg Music Company, with the appellees A. B. Floyd and J. R. Johnson as sureties, conditioned, as required by the statute, that said John Morris would not remove said piano out of Dallas county, and that he would have it, with the value of the fruits, hire, or revenue of the same, forth-coming to abide the decision of the court, or that he would pay the value thereof, and of the fruits, hire, or revenue of the same, in case he should be condemned so to do. On the trial in the justice's court a personal judgment was rendered for the plaintiff against the defendant for the debt claimed, but the foreclosure of the lien on the piano was refused. On appeal to the county court the same judgment was there rendered, and the plaintiff appealed to the court of civil appeals. On the 13th of April, 1896, the court of civil appeals for the Fourth district reversed the judgment of the county court, and rendered judgment in favor of the Hollenberg Music Company for the sum of $66.60, with interest at the rate of 6 per cent. per annum from June 9, 1894, together with all costs of that court, the county court, and the justice's court, and foreclosing the lien on the piano, as claimed. The mandate of the appellate court was filed in the county court, and on the 8th day of June, 1896, an order of sale was issued on said judgment, which was returned by the sheriff that said piano could not be found in his county. On the 15th day of June, 1897, the Hollenberg Music Company filed a motion in the county court setting up the above facts, and praying that a judgment nunc pro tunc as of July 8, 1896, be rendered against A. B. Floyd and J. R. Johnson, the sureties on said replevy bond, for the amount of said judgment and costs; and on June 19, 1896, the motion was granted, and judgment nunc pro tunc entered against them as prayed for, but no notice of said motion was served on either of said sureties. On the 8th day of September, 1897, execution was issued on said judgment, and the sheriff of Dallas county was about to levy upon the property of A. B. Floyd, when he presented his petition for injunction to the county judge, and it was granted. The petition for injunction sets out, substantially, the foregoing facts, and relies mainly upon the fact that no notice of the motion to enter judgment nunc pro tunc was personally served on Floyd and Johnson. The trial court perpetuated the injunction, for the reason, given, that the county court was wanting in jurisdiction to render the judgment of date June 19, 1897. It appears from the judgment of the court of civil appeals, which foreclosed the lien upon the piano in question, as previously stated, that they affirmed the judgment of the trial court against the original defendant, John Morris, and simply foreclosed the lien on the piano in question. The replevy bond, which had been previously executed by Morris, with Floyd and Johnson as sureties, under the terms of the statute, was not before the court of civil appeals for consideration, nor did that court pass upon the liability of the obligors in that instrument. After the mandate was issued from the court of civil appeals to the county court of Dallas county (the trial court which originally disposed of the case), that court (that is, the county court) had issued an order of sale, which was returned with an indorsement to the effect that the piano could not be found in Dallas county. Thereafter, on the 15th of June, the appellant filed a motion in the county court of Dallas county, setting up the above facts, and praying for a judgment against A. B. Floyd and J. R. Johnson, as sureties on...