YOUNG, Justice.
This suit was filed by appellant against Sheriff Bill Decker of Dallas County and surety on his official bond under Art. 3825, Vernon's Ann.Civ.St., seeking to fix liability for failure and refusal to levy on certain merchandise and fixtures described as the property of judgment debtor, Melvin May. Before making return of nulla bona on the execution in question, the Sheriff made request on the judgment creditor (appellant) to post an indemnity bond, which was refused. The appeal is by Fant Milling Company from adverse judgment rendered on trial to the court.
The material facts and issues involved are sufficiently reflected in findings and conclusions duly filed by the trial court, viz.: '(1) That on the 12th day of January, 1950 plaintiff, Fant Milling Company, a corporation, recovered judgment against Melvin May, dba Dallas Feed Company, said judgment providing, among other things, as follows: 'It is therefore ordered, adjudged and decreed that the plaintiff, Fant Milling Company, do have and recover of the defendant, Melvin May, doing business as Dallas Feed Company, its damages in the present sum of one thousand two hundred and thirty-eight and 36/ sand two hundred and thirty-eight and 36/100 ($1,238.36) dollars plus interest thereon at the rate of six (6%) per cent per annum from the 3rd day of April 1949 plus
its costs in this cause expended, and that defendant, Melvin May, doing business as Dallas Feed Company, take nothing by his cross action herein filed, and that as to such cross action Fant Milling Company go hence with its costs without day; for all of which let execution issue.' And that said judgment is final, no appeal therefrom having been perfected during the time allowed by law. (2) That on February 2, 1950 plaintiff, Fant Milling Company, a corporation, caused to be issued, and there was duly issued, out of this Court a writ of execution upon and pursuant to said judgment above described, which writ of execution was returnable in 90 days and the same was duly delivered to the defendant, Bill Decker, Sheriff of Dallas County, Texas, on the 3rd day of February, 1950, and the following return was made by him, through his deputy, to wit: 'Came to hand 3 day of Feb. A.D. 1950 and returned on the 26 day of April, A.D. 1950 no property found in Dallas County belonging to defendant subject to execution. Fee $1.00. Bill Decker, Sheriff Dallas County, Texas By: /s/ W. B. Bass, Deputy.' (3) The defendant Bill Decker, Sheriff of Dallas County, Texas, through his deputy, W. B. Bass, immediately upon receipt of said writ of execution went to he premises known as 602 North Fleming Street in the City and County of Dallas, Texas and found a Melvin May in possession of a small feed store with old fixtures therein of an estimated value of about Sixty ($60) Dollars, and a small stock of feed, the estimated value thereof being between Two Hundred ($200) and Three Hundred ($300) Dollars; that when the said Bass asked the said Melvin May who the owner of said feed was the said Melvin May told Bass that the said feed was placed therein on a consignment basis. (4) That after said visit between the said Bass and the said Melvin May, the defendant Bill Decker, in a conversation with said Melvin May, was advised by May that the feed in said premises, in his possession, was purchased upon a consignment basis, delivery thereof being from day to day, and that the said feed was thus purchased from the Universal Mills and Burrus Feed and Elevator Company, which facts were later verified by the said Bill Decker in conversations with officials of the said Universal Mills and Burrus Feed and Elevator Company. (5) That the real estate and fixtures of the premises at 602 North Fleming Street, Dallas, Texas, in possession of the said Melvin May were found by the defendant, Bill Decker, to have been heavily mortgaged. (6) That after the facts hereinabove stated in paragraphs (3), (4) and (5) herein were ascertained, the defendant, Bill Decker, communicated with the attorneys of record for the Fant Milling Company, a corporation, advising of the circumstances and requesting that an indemnity bond be executed by the said Fant Milling Company in favor of the said Bill Decker indemnifying him against all losses to all parties owning or claiming title or an interest in and to said feed and fixtures hereinabove described, and that the said Fant Milling Company failed and refused through their attorneys of record to furnish the requested indemnity bond and insisted upon the defendant, Bill Decker, levying upon said fixtures and feed and, thereupon, the said Bill Decker, through his deputy, W. B. Bass, made the return on the said writ of execution as shown hereinabove. (7) That the Fant Milling Company, a corporation, at the hearing upon its motion for damages against the defendant, Bill Decker, and his bondsmen, introduced the following evidence: (a) that judgment of this court in the above entitled and numbered cause, including the portion hereinabove described in paragraph numbered 1 hereof; (b) the writ of execution duly issued by the Clerk of this Court on February 2, 1950, the return thereon being the same as the return hereinabove quoted in paragraph 2 hereof; (c) elicited from a single witness, an employee of the Fant Milling Company, a corporation, that he had been by the premises known as 602 North Fleming Street, Dallas, Texas about a year prior to the date of the motion hearing and that he saw some feed in the premises and that the said defendant, Melvin May, was in the building located at said address but that the witness had no conversation with the
said Melvin May at that time or any subsequent time, and the witness could not testify as a positive fact that the feed which he saw in the building at said address belonged to the said Melvin May; and that after the plaintiff had introduced the foregoing evidence and testimony, he rested his case. Whereupon the defendant, Bill Decker and the defendant, Great American Indemnity Company, through their attorney, moved for judgment on the ground that the plaintiff had not established a prima-facie case and the said defendants, under an agreement with the court whereby they should not be considered to have waived their right to judgment, proceeded to introduce their evidence showing the other matters of fact as hereinabove found by the court. Conclusions of Law: (1) That the defendant, Bill Decker, was apprised of such facts with regard to the ownership of or the assertion of an interest in the feed and fixtures found in the building at the premises known as 602 North Fleming Street, Dallas, Texas by third parties to justify his conclusion that there existed a potential liability if he levied upon the alleged feed and fixtures described in plaintiff's motion herein and that he was justified under the facts and the law to demand of the plaintiff, Fant Milling Company, a corporation, an indemnity bond indemnifying him for any damages for which he might be found liable as a result of the levy upon, seizure and sale of the said alleged fixtures and feed. (2) Since the Fant Milling Company refused to comply with the request of defendant, Bill Decker, to furnish him an indemnity bond, he was justified in refusing to make a levy upon the alleged feed and fixtures at 602 North Fleming Street, Dallas, Texas and the plaintiff cannot recover damages for his alleged failure to make a levy thereon. (3) The plaintiff, Fant Milling Company, a corporation, failed to establish a primafacie case in that it did not prove that there was property in the hands of the said Melvin May at any time between February 3, 1950 and April 26, 1950 which belonged to him and which was subject to forced sale under said writ of execution. (4) Since the defendant, Bill Decker, was not liable for failure to make a levy and forced sale of said property, the defendant, the Great American Indemnity Company, surety on the official bond of the said Bill Decker, is not liable to the plaintiff, the Fant Milling Company, a corporation.'
Specifically, it was the testimony of George Lake, appellant's witness and employee, that he was actually in the store of Melvin May about a year previous to the trial, passing by several times in early part of 1950, observing that the store, with fixtures and stock of feed, was open for business. Sheriff Decker stated on cross-examination that he did not check the County Court records for consignment contracts, merely for mortgages,-testifying: 'I don't know whether it was on open account or how it was sold to him. It was consignment or open account, I don't know. He said that they sent him enough merchandise to do business every day, now that is his statement. I am not vouching for it.' In the same connection Deputy Bass testified: 'Q. What terms were they selling the merchandise on, consignment or-A. That is right, from week to week and month to month.'
From the view we take of appellant's case as made, same may be fully disposed of by a discussion of its points 1 and 6, complaining of the trial court's error 'in holding that Bill Decker, Sheriff of Dallas County, was entitled to an indemnity bond before levying writ of execution on stock of goods, wares and merchandise daily exposed to sale, which was in the possession of the judgment debtor and which, by the defendant, Bill Decker's, own evidence, were sold to said judgment debtor on open account by general creditors,' and 'in concluding that the defendant, Bill Decker, was not liable for failure to make levy and sale of the property of the defendant in execution, and...
