Cabell v. Hamilton Brown Shoe Co.

• Decision Date: 19 May 1891
• Citation: 16 S.W. 811
• Parties: CABELL, United States Marshal, <I>et al.,</I> v. HAMILTON BROWN SHOE CO. <I>et al.</I>
• Court: Texas Supreme Court

Page 811

16 S.W. 811

CABELL, United States Marshal, et al., v. HAMILTON BROWN SHOE CO. et al.

Supreme Court of Texas.

May 19, 1891.

Appeal from district court, McLennan county; EUGENE WILLIAMS, Judge.

J. A. Martin and Clark, Dyer & Bolinger, for appellants. Herring & Kelley, for appellees.

STAYTON, C.J.

This action was brought by appellees against W. L. Cabell, United States marshal, the sureties on his official bond, and against the sureties on an indemnity bond given to the marshal to indemnify him in levying a writ of attachment sued out by Samuel C. Davis & Co. against John La Prelle upon personal property claimed by appellees. The principals on the indemnity bond were not made parties, it being alleged that they were not residents of this state, and that they had no property within it. The marshal alleged that the principals on the indemnity bond had property within this state, made them parties to the suit, prayed judgment over against them in case judgment went against him, and asked that the cause be continued, that they might be cited, but this was refused. The sureties on the indemnity bond also asked that their principals be made parties, and that the cause be continued for service upon them. The cause was tried, and resulted in a judgment for plaintiffs, from which the defendants appeal; and it is urged that the court erred in refusing to grant a continuance to enable the defendants, who so sought, to obtain service on the non-resident principals on the indemnity bond. The statute provides that "whenever a sheriff, constable, or deputy of either, has been sued for damages for any act done in their official character, and they have taken indemnifying bonds for such acts so done by them, upon which said acts suits for damages are based, the said sheriffs, constables, or deputies shall have the right to make the parties principal and surety on such bond of indemnity parties defendant in suit for damages, and the cause may be continued for the purpose of obtaining service on such parties so made in said cause." Sayles' Civil St. art. 4525a. The statute does not in terms embrace United States marshals, and it is not necessary in this case to determine whether the statute can be applied to them; for, if it may be, it is evident that this cause should not have been continued for a purpose which could not have been accomplished by any process the court could have issued. The principals on the indemnity bond were not residents of this state, and neither service by publication nor notice actually served without the state could have conferred jurisdiction over them such as would have empowered the court to render a personal judgment against them. This was not an action on the bond or on any cause of action that would have authorized the seizure of their property under attachment or other writ which would have authorized its subjection to sale in satisfaction of a judgment to be rendered on service by publication or by notice served without the state, and the fact that they may have property within this state was immaterial; and it was not shown that they then were, or ever would be, willing voluntarily to appear, nor that they would be at any time within reach of the process of the court. Were this an action on the indemnity bond, it might be maintained against the sureties alone, the principals residing beyond this state. Rev. St. art. 1208. The original answer was filed on March 9, 1888, and a jury was then demanded by defendants, but the jury fee was not paid until April 12th, which was after the time allotted for the trial of jury cases had passed; and when the cause was called on the next day for trial as a non-jury case defendants asked that it be placed on the jury docket, and be tried by a jury, which the court refused. As early as March 29th, counsel for defendants had been informed by the court that no case would be placed on the jury docket until the jury fee was paid, and under this state of facts we are of opinion that the court did not err in refusing a jury. It has been held that a failure to pay the jury fee on the day a jury is demanded will not, of itself, deprive a party of the right to a trial by jury; but this was in cases in which it appeared that no delay or injury resulted, and in which there was no unreasonable delay in paying the jury fee. In the case before us the parties asking a jury seemed indisposed to pay the jury fee so long as there was a probability that they could get a trial by jury, and, after it was seen that this could not be had, were solicitous that it should not otherwise be tried, and, had the court granted the application made when the cause was called for trial, the inference is that defendants might thus have obtained a continuance. District courts are required to fix days for taking up jury cases. Id. arts. 1289, 3071. Clerks are required to keep a jury...