Clayton v. Stephenson

• Decision Date: 13 June 1923
• Docket Number: (No. 2168.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Clayton v. Stephenson, 254 S.W. 507 (Tex. App. 1923)
• Parties: CLAYTON v. STEPHENSON.
• Court: Texas Court of Appeals

Page 507

254 S.W. 507

CLAYTON v. STEPHENSON.

(No. 2168.)^*

Court of Civil Appeals of Texas. Amarillo.

June 13, 1923.

Rehearing Denied October 3, 1923.

Appeal from District Court, Wichita County; E. W. Napier, Judge.

Action by J. C. Clayton against J. M. Stephenson. Judgment for defendant, and plaintiff appeals. Affirmed.

E. E. Fischer and T. F. Hunter, both of Wichita Falls (Bonner, Bonner & Sanford, of Wichita Falls, on the brief), for appellant.

Weeks, Morrow & Francis, of Wichita Falls, for appellee.

BOYCE, J.

J. C. Clayton brought this suit to enjoin the execution of a judgment against him in favor of appellee, Stephenson. The judgment attacked was rendered in a suit brought by Stephenson against John Bailey. In that suit an attachment was levied on a certain automobile as the property of Bailey. This automobile was replevied on bond executed by Bailey as principal and Clayton and another as sureties. This bond, after reciting the seizure of the property on the writ of attachment contains this further recital:

"And which, by the said plaintiff herein, has been appraised at $2,000.00 and has been permitted to remain in the hands of said defendant herein,"

and is conditioned as follows:

"Now, therefore, we, the said John Bailey and all other signers hereto, acknowledge ourselves bound to pay to the plaintiff, J. M. Stephenson, in said attachment the sum of $2,000.00 conditioned that should the defendant be condemned in the above-entitled cause he shall satisfy the judgment which may be rendered therein or shall pay the estimated value of the property, with lawful interest thereon from the date of this bond."

The judgment in that case was against Bailey for the sum of $2,028.50, and on the replevy bond just described against Bailey, Clayton, and the other surety, for the sum of $2,000, the judgment reciting that the officer seizing the automobile under the attachment writ appraised it at such sum.

Plaintiff alleged in this injunction suit that he was the owner of said automobile attached as the property of Bailey; that, when the officer seized said property under attachment, he employed attorneys (other than the ones now representing him) for the purpose of establishing his title to said property, and retaining possession thereof; that the said attorneys, through mistake, instead of preparing claimant's oath and bond, and proceeding in that manner to establish plaintiff's claim to said property, prepared the replevy bond hereinbefore described, and plaintiff executed the same without understanding the purport thereof, thinking it was a claimant's bond, which would entitle him to try his right to said property; that some time thereafter plaintiff learned of said mistake, and redelivered the automobile to the sheriff; that, "after the constructive delivery thereof to the officer," plaintiff executed and filed a claimant's oath and bond, taking possession of said automobile under said claim, and still holds possession, subject to disposition thereof under said proceeding to try title; that for such reason the plaintiff was not bound on said purported replevy bond; that in any event the said replevy bond was not a statutory bond, and the court was without power to render summary judgment against the plaintiff thereon in the said suit against Bailey.

The case was tried before the court without a jury, and judgment rendered denying the injunction. On the trial evidence was offered to sustain appellant's allegations of ownership of the automobile, and the circumstances of the execution of the replevy bond and the claimant's oath and bond as alleged. In view of the conclusion we have reached, we may assume that these allegations were conclusively established by the evidence. The petition for injunction does not allege when plaintiff became aware of the fact that judgment had been rendered against him on the replevy bond in the suit against Bailey. He testified on the trial of this case that his attorneys (other than the ones now representing him) "tried to intervene for me in the suit of J. M. Stephenson v. John Bailey. * * * I was present in the courtroom when the application for intervention in said cause was made by my attorneys for the purpose of establishing my title to the car in question. The court refused to allow such intervention." There was also introduced in evidence the judgment of the court denying appellant the right of intervention in the suit of Stephenson against Bailey. No evidence was offered as to the allegations on which intervention was sought. No motion for new trial was filed by appellant in the Stephenson-Bailey suit, and no appeal or writ of error taken fom the judgment in said cause.

If the so-called replevy bond were a statutory bond, the appellant, Clayton, a surety thereon, was in many respects practically a party to the suit, and the court was authorized to render judgment on the bond without notice to him. Mills v. Hackett, 65 Tex. 580; Seinsheimer v. Flannagan, 17 Tex. Civ. App. 427, 44 S. W. 30; Morris v. Anderson (Tex. Civ. App.) 152 S. W. 677; Tripplett v. Hendricks (Tex. Civ. App.) 212 S. W. 754. In any event, we take it that he had the right to...