Davis v. Dallas Nat. Bank

• Decision Date: 04 April 1894
• Parties: DAVIS et al. v. DALLAS NAT. BANK.
• Court: Texas Court of Appeals

26 S.W. 222

DAVIS et al. v. DALLAS NAT. BANK.

Court of Civil Appeals of Texas.

April 4, 1894.

Appeal from district court, Clay county; George E. Miller, Judge.

Action by J. H. Davis & Bros. and others against the Dallas National Bank to determine the right to certain property attached by the bank in an action brought by it against J. L. Hull. The bank obtained judgment. J. H. Davis & Bros. appeal. Reversed.

R. D. Welborne, W. O. Davis, and J. L. Harris, for appellants. J. A. Templeton and L. C. Barrett, for appellee.

HEAD, J.

We find no reversible error in the refusal of the court to consolidate this cause with cause No. 328, in which the Decatur National Bank was plaintiff and these appellants were defendants as claimants. We believe, however, the better practice would have been to have consolidated the cases, notwithstanding separate bonds were given. Our statute passed since the levy of these attachments (2 Sayles' Civ. St. arts. 4823, 4843) contemplates that but one judgment will be rendered against the claimant for the value of the property, which will be ordered paid to the plaintiffs in the different writs according to their respective priorities. This was, however, the proper practice, even before the passage of this statute. Elser v. Graber, 69 Tex. 222, 6 S. W. 560. It is true, in the case last cited, only one bond was given, which was made payable to all the plaintiffs in the different writs; but it seems to us that the same rule of liability should be applied to the claimant in cases where he gave separate bonds, and that the rights of the respective parties could be more easily adjusted in one suit than by proceeding separately. The question of consolidation, however, is one so largely confided to the discretion of the trial court that we would not feel disposed to reverse a judgment for error in its ruling thereon, unless injury be shown to have resulted to the complaining party therefrom. Young v. Gray, 65 Tex. 99. In this case, by proper pleading, we think appellants can fully protect themselves in the case with which consolidation was refused. Blankenship v. Thurman, 68 Tex. 671, 5 S. W. 836.

We think the court committed no error in refusing to hold the levy of the attachment under which appellee claims void. The return of the officer upon this writ, which it is claimed makes this levy a nullity, is as follows: "Came to hand the 22nd day of June, 1885, at 5 o'clock p. m., and executed June 22nd, 1885, by seizing and levying upon all the following marks and brands of cattle, and all the cattle in said brands as follows, to wit: About 1,200 head of stock cattle, including cows, calves, yearlings, said brands described as follows and said cattle branded in said brands, to wit: H U L on left side, L H on left side and 4 on left hip, NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE on left side jaw, shoulder and hip and various marks; and also all the steer cattle branded as follows: X°4 on left side, except the bulls, 3T on left side and O around left hip bone, except the bulls, 4T on left side and O around left hip bone, and about 250 branded 2 (on either side) on hip, side and thigh, and X4 on right hip and side, said brands and marks, and said cattle branded therein, levied on as the property of J. L. Hull, in the presence of James Dawson and W. S. Foster, as they ran at large on the range in Clay and adjoining counties, and notice thereof given in writing to said J. L. Hull on the 22nd day of June, 1885. [Signed] G. C. Wright, Sheriff of Clay county, Texas, by Lon Burson, Deputy."

The return which, in the case of Gunter v. Cobb, 82 Tex. 602, 17 S. W. 848, was held to show an invalid levy upon cattle running at large on the range, was as follows: "I did, in the presence of two good and credible witnesses, to wit, W. E. Johnson and H. Burnham, levy upon and take into possession, as they ran upon the range in Wichita county, Texas, the following described stock cattle: A certain lot of mixed stock cattle, some branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, some NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, some NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, some X O Z, nearly all those branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, and X O Z having the NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE brand on them also; and all of them having a NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE on the left loin; numbering 3,000 head, and being all the cattle in said brand in Wichita county." Similar levies were made in several other counties, in each instance restricting the levy to the cattle running in the particular county in which it was made; and this was wherein the invalidity consisted. We do not understand the levy in this case to be so restricted, but rather to be a levy upon 1,200 head of stock cattle in the given brands, wherever found, and the naming of Clay and adjoining counties should be treated rather as furnishing information for locating the cattle, than restricting the levy.

We also think the...