Deware v. Wichita Val. Mill & Elevator Co.

• Decision Date: 27 November 1897
• Citation: 43 S.W. 1047
• Parties: DEWARE et al. v. WICHITA VAL. MILL & ELEVATOR CO. et al.
• Court: Texas Court of Appeals

Page 1047

43 S.W. 1047

DEWARE et al. v. WICHITA VAL. MILL & ELEVATOR CO. et al.

Court of Civil Appeals of Texas.

November 27, 1897.

Appeal from district court, Marion county; J. M. Talbot, Judge.

Action by the Wichita Valley Mill & Elevator Company and others against J. M. Deware, trustee, and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This suit was brought by the appellees, the Wichita Valley Mill & Elevator Company, Slayden Kirksey Woolen Mills, Sanders Duck & Rubber Company, Wyland, Ackerland & Co., R. Douglass Crockery Company, H. R. Krite & Co., Fink & Nasse, and William A. Orr Shoe Company, against the appellants, on a claim bond executed by appellant J. M. Deware, as trustee, as principal, and the appellants T. J. Rogers and B. F. Rogers, as sureties, on said claim bond, on December 22, 1894. On September 18, 1895, appellees filed their petition in the district court of Marion county, Tex., alleging, in substance, that the appellees were each and all judgment creditors of one Max Simmons, and that they had all secured attachment liens upon the property of said Max Simmons of the aggregate value, as assessed by the sheriff, of the sum of $1,627.66; that said liens were foreclosed, subject to the trial of the right of property voluntarily made and tendered by appellant J. M. Deware, trustee, who made, executed, and delivered the claim bond sued on, with the appellants T. J. Rogers and B. F. Rogers as sureties on the same, in the sum of $3,300; that the claim of said J. M. Deware, trustee, was never established, and no effort was ever made in any court of competent jurisdiction to establish the same, but said claims were docketed in courts having no jurisdiction, and subsequently dismissed by consent, and at cost of claimant, and said claim has long since been waived and abandoned by appellants, and said bond breached, and a cause of action accrued thereon. On December 16, 1895, appellants answered by motion to quash citation, exceptions, etc., and on December 28, 1896, by amended answer containing general denial, and special answer setting up the fact that they did execute the bond sued on in the manner as charged in appellants' petition, but that the levies charged to have been made, and which are the foundation of said bond, were illegal and void, and of no force and effect; that said levies did not disturb the possession of said claimant, J. M. Deware, who was at the time of said levies sheriff of Marion county, Tex.; that said levies were made by said J. M. Deware, sheriff of said county, upon property in his possession, and which he was holding under a deed of trust executed by Max Simmons to secure various and divers bona fide creditors of the said Max Simmons; that on December 13, 1894, the said Max Simmons, for the purpose of securing various and divers bona fide creditors of the said Max Simmons, —and among the number were the defendants T. J. Rogers and T. J. Rogers & Son,—the said Max Simmons made, executed, and delivered to the defendant J. M. Deware his certain deed of trust, wherein he conveyed to said J. M. Deware all the said property charged to have been levied upon in plaintiffs' petition; that the said J. M. Deware immediately took actual possession of all of said property under the terms of said deed of trust, and the said J. M. Deware was in actual possession of all of said property at and before the time of said illegal and void levy; that, after said illegal and void levy, the said J. M. Deware executed said bond sued upon, and made his affidavit claiming said property, as trustee, and immediately filed said bond and affidavit in the proper courts having jurisdiction thereof, for the trial of the right of property; that the said J. M. Deware has always been, and was then, ready and willing to fully establish his right and claim to said property, as trustee, under said deed of trust; that the said Deware has done no act evidencing any intention whatever on his part not to prosecute his said right and claim to said property under said deed of trust; that there has never been any issue made and trial had upon the merits of said claim bond and affidavit that would render the said defendants liable upon said bond; that the failure to get a trial upon the merits of said claim case was not caused by any fault on the part of defendants, but was caused wholly by the statements and representations by the plaintiffs, acting by and through their attorney, George T. Todd, to the effect that said plaintiffs had abandoned said claim suit, and that said plaintiffs recognized and admitted the right and title of the claimant, J. M. Deware, to said property, as being superior to the said right of plaintiffs arising from their attachment lien, and with that understanding with the said Todd, attorney for plaintiffs, and R. R. Taylor, attorney for defendants, said claim suit was dismissed voluntarily by the said Todd, representing the said plaintiffs in said claim suit; and further prayed that defendants be allowed to establish the right and claim of the said J. M. Deware, trustee, to said property, and that they have judgment accordingly. December 30, 1896, the cause was tried before a jury, and resulted in a verdict and judgment for plaintiffs for the aggregate sum of $1,113.77, with 6 per cent. interest from December 22, 1894, and all costs of suit. Appellants filed motion for new trial, which being overruled, they excepted, and have duly perfected this appeal.

R. R. Taylor, for appellants. Geo. T. Todd, L. S. Schluter, and J. H. Culberson, for appellees.

BOOKHOUT, J. (after stating the facts).

Appellants' first assignment of error is too general to...