Crutcher v. Wolfe

• Decision Date: 19 February 1925
• Docket Number: (No. 169.)
• Citation: Crutcher v. Wolfe, 269 S.W. 841 (Tex. App. 1925)
• Parties: CRUTCHER v. WOLFE et al.
• Court: Texas Court of Appeals

269 S.W. 841

CRUTCHER v. WOLFE et al.

(No. 169.)

Court of Civil Appeals of Texas. Waco.

February 19, 1925.

Appeal from Limestone County Court; H. F. Kirby, Judge.

Suit by H. N. Wolfe and others against W. A. Crutcher to enjoin enforcement of judgment against J. H. Rogers on whose bonds plaintiffs were sureties. From judgment for plaintiffs, defendant appeals. Reversed, and rendered.

E. G. Lloyd, Jr., of Groesbeck, for appellant.

Ira Lawley, of Groesbeck, for appellees.

Statement of Case.

STANFORD, J.

This controversy originated in the justice court in Limestone county, when W. A. Crutcher sued his tenant, Ben Welch, for rents and advancements, and procured the levy of a distress warrant on a bale of cotton, on which he claimed the landlord's lien. Ben Welch, though duly cited, made no appearance, and judgment was rendered against him by default for said rents and a foreclosure of the landlord's lien. In the meantime, J. H. Rogers presented, to the officer who made said levy, his affidavit and bond for said bale of cotton. The officer returned over said bale of cotton to Rogers, and made due return of said affidavit and bond to the justice court, in which said original case was pending, and said court docketed said cause, "W. A. Crutcher v. J. H. Rogers et al." This cause for trial of the right of property in said bale of cotton was tried, and judgment rendered in favor of W. A. Crutcher against J. H. Rogers, and H. N. Wolfe and H. W. Ahlers, sureties on his claimant's bond, for said bale of cotton, or its value. From this judgment, J. H. Rogers appealed to the county court of Limestone county by giving an appeal bond, with H. W. Ahlers and Sam Wiley as sureties. On June 26, 1922, none of the defendants appearing, judgment was rendered in favor of W. A. Crutcher and against J. H. Rogers, and H. W. Ahlers and Sam Wiley, sureties on the appeal bond, and H. N. Wolfe and H. W. Ahlers, sureties on the claimant's bond, for said bale of cotton, or its value, $100. Upon motion for a new trial, on July 7, 1922, this judgment was set aside and a new trial granted. On December 23, 1922, the case was tried again before a jury, and judgment rendered in favor of W. A. Crutcher against J. H. Rogers, and H. W. Ahlers and Sam Wiley, sureties on his appeal bond, and H. N. Wolfe and H. W. Ahlers, sureties on his claimant's bond, for said bale of cotton, or its value, $100.

Motion for a new trial was filed, which was overruled December 30, 1922, and notice of appeal given to the Court of Civil Appeals for the Fifth Supreme Judicial District at Dallas, Texas, and 60 days granted within which to file statement of facts and bills of exceptions. On February 23, 1923, J. H. Rogers and the several sureties filed a motion to retax costs, which said motion was granted. On February 24, 1923, said H. W. Ahlers, Sam Wiley, and H. N. Wolfe, appellees, herein, filed a motion for, and secured, a further extension of 30 days' time in which to file bills of exceptions and statement of facts, etc.

On February 26, 1923, the sureties on the two bonds appellees herein, presented to the county court, the same judge before whom the case had been twice tried, their petition for injunction to restrain W. A. Crutcher from enforcing said judgment. A temporary restraining order was granted, and this injunction suit docketed, "H. N. Wolfe et al. v. W. A. Crutcher," and, on December 17, 1923, on the hearing before the court without a jury, this temporary injunction was made permanent, perpetually restraining W. A. Crutcher from enforcing payment of his judgment in the county court against J. H. Rogers, and H. W. Ahlers and Sam Wiley, sureties on the appeal bond, and H. N. Wolfe and H. W. Ahlers, sureties on the claimant's bond. Hence this appeal by W. A. Crutcher.

Opinion.

Appellees, H. W. Ahlers and H. N. Wolfe, in their petition for injunction, alleged that in the cause of W. A. Crutcher v. J. H. Rogers et al., No. 27 in the justice court, and in the same cause, No. 471 in the county court, they were not properly before said courts, and hence no judgment could be rendered against them, because they had not been served with citation, etc. But they, by signing the claimant's bond for J. H. Rogers, submitted themselves to the jurisdiction of said courts, and authorized judgments to be rendered against them without further notice, in case J. H. Rogers failed to establish his right to said property. Revised Civil Statutes, arts. 7774, 7788, and 7790.

Appellees, H. W. Ahlers and Sam Wiley, also contend in their petition for injunction that said judgment in the county court was void, because rendered against them without any service or notice of any kind upon them etc. But these two appellees signed the appeal bond for J. H. Rogers in his appeal from the justice court, and, by so doing, they submitted themselves to the jurisdiction of the county court, so that judgment could be rendered against them without any further notice or citation. Cotulla v. Goggan, 77 Tex. 33, 13 S. W. 742; Franks v. Ware (Tex. Civ. App.) 24 S. W. 349; Hensel v. Kaufmann (Tex. Civ. App.) 40 S. W. 819; T. & B. V. Ry. Co. v. Voss (Tex. Civ. App.) 160 S. W. 663; Knox et al. v. Horne, et al. (Tex. Civ. App.) 200 S. W. 259.

Appellees' petition for injunction, with exhibits attached, consists of 27 pages of the transcript, and the principal part of said petition consists of complaints of alleged errors and irregularities alleged to have been committed in the justice court in the case of Crutcher v. Welch and Crutcher v. Rogers, such as, that the distress warrant was void because it was not shown therein, or in the officer's return, what disposition was made of the cotton, or to what court the distress warrant was returned or what disposition was made of the distress warrant; that the affidavit for the distress warrant was defective, etc., and that for such reasons W. A. Crutcher had waived his lien and is estopped from asserting it.

The landlord's lien is a statutory lien, created by statute, and exists independent of the distress warrant, which is only a means of securing the property until the lien can be foreclosed. If any part of the distress proceeding was defective, appellees' remedy was to quash same, and if such proceeding had been quashed, such action on the part of the court would not have affected the landlord's lien. Templeman v. Gresham, 61 Tex. 50; Newman v. Ward (Tex. Civ. App.) 46 S. W. 868; Polk v. King et al., 19 Tex. Civ. App. 666, 48 S. W. 601.

All of these alleged irregularities in the justice court, which in no way affected the jurisdiction of said court, or the regularity of the appeal to the county court, are wholly immaterial, and constitute no grounds for enjoining the county court judgment. The trial is de novo in the county court. The county court does not sit as a court of errors for the correction of errors of the justice court, but entertains the case for the purpose of a new trial on its merits. Perry v. McKinzie et al., 4 Tex. 154; I. & G. N. Ry. Co. v. Philips, 63 Tex. 592; Sheldon v. City of San Antonio, 25 Tex. Supp. 178.

From his findings of fact and conclusions of law, we infer the trial court concluded that because the claimant's oath and bond were never filed in the justice court with the distress warrant, and because the return on the distress warrant failed to show that the property levied on had been surrendered to the claimant, and stating the value of said property, that it affirmatively appeared that the justice court had no jurisdiction, and so the county court could acquire none on appeal. It is true if the justice court had no jurisdiction then the county court could acquire none on appeal. But did not the justice court have jurisdiction? Article 7773, Revised Civil Statutes, provides:

"The sheriff or other officer receiving such oath and bond shall endorse on the writ that such claim has been made and oath and bond given, stating by whom, and shall also endorse on such bond the value of the property as assessed by himself, and shall forthwith return such bond and oath to the proper justice or court having jurisdiction to try such claim, as hereinafter provided."

It was the duty of the officer levying the distress warrant in this case, as a part of his return on same, to state that claim had been made to the bale of cotton and oath and bond given, stating by whom, the name of the sureties, and to what justice or court the bond had been returned, and forthwith return such original writ to the justice court from which it issued. Articles 7773 and 7777. It was also his duty to indorse on the bond taken by him the value of the property as assessed by him, and forthwith return such bond and oath to the proper justice or other court having jurisdiction of the amount, as assessed by the officer,...