First Nat. Bank v. Cooper

• Decision Date: 05 December 1928
• Docket Number: (No. 3117.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 12 S.W.2d 271
• Parties: FIRST NAT. BANK OF LITTLEFIELD v. COOPER et al.
• Court: Texas Court of Appeals

12 S.W.2d 271

FIRST NAT. BANK OF LITTLEFIELD v. COOPER et al.

(No. 3117.)^*

Court of Civil Appeals of Texas. Amarillo.

December 5, 1928.

Rehearing Denied January 9, 1929.

Appeal from District Court, Cochran County; Homer L. Pharr, Judge.

Action by Lee Cooper against the First National Bank of Littlefield and others. Judgment for plaintiff, and named defendant appeals. Reversed and rendered.

E. A. Bills, of Littlefield, and Bean & Klett, of Lubbock, for appellant.

Rob't A. Sowder, of Lubbock, for appellees.

HALL, C. J.

Defendant in error, Cooper, sued the First National Bank of Littlefield and J. C. Hilburn, its president, and F. K. Allbright, as sureties on the bank's attachment bond, J. C. Montgomery, sheriff of Cochran county, and E. A. Bills and J. W. Blaylock, sureties on the indemnity bond, to recover damages for the wrongful and malicious levy of a writ of attachment upon certain lands alleged to be the property of Cooper.

The substance of the petition is that the bank had previously sued him upon a promissory note, and in that action procured an attachment writ which was levied upon his land; part of the premises attached being his homestead. He sets out in detail the attachment proceedings, giving the substance of the pleadings, the affidavit for attachment, bond and writ, with the sheriff's return, and sets out briefly the stipulations of the indemnity bond which the bank gave the sheriff prior to the levy of the attachment. He further alleges that he had been for many years, and was at the time of the levy, the owner of the 400 acres of land upon which he resided, with his family, as his homestead; that at the time of the levy there was growing upon the premises 30 acres of cotton, 60 acres of higera, 30 acres of maize, 30 acres of corn, and 60 acres of wheat; that none of said crops had been severed from the land and none had fully matured; that he was preparing to harvest all of the crops except the wheat and cotton at once, and would have harvested the same but for the levy by the sheriff, which was made at the orders of the other defendants; that such levy took from him the right to harvest his said crops; that before the suit was filed against him, the bank and Hilburn and Allbright knew that plaintiff was not indebted to the bank for the amount evidenced by the note sued on and that the note was illegal and void, in that it had been given for corporate stock in the Littlefield State Bank of Littlefield; that the defendant bank was not an innocent holder for value, having purchased the note after its maturity, and said bank knew and had knowledge of facts sufficient to charge them with notice of the invalidity of the note; that said cause was tried the 30th day of November, 1927, and resulted in a judgment in Cooper's favor, which judgment is still in full force and effect; that immediately upon the levy of the writ of attachment, he informed the bank that the crops levied upon were a part of his homestead, not subject to process, and demanded that the writ be released, especially as to all crops except the wheat; that the bank refused to release the lien, so that plaintiff could harvest and save his crops, until after November 11, 1927; that in an attempt to have the attachment lien released, he made two trips to the town of Lubbock, about 50 miles away, at the reasonable and necessary expense and loss of time of $100 for each trip; that he necessarily telephoned the defendant bank at an expense of $2.95, and upon another occasion at the necessary expense of $1.20; that he made one trip to Levelland, about 35 miles distant, in an effort to get the attachment lien released, at a reasonable expense of $10; that he was delayed more than two weeks in beginning his harvest, and but for such attachment he would have commenced and completed harvesting his crops at least two weeks earlier; that by reason of the delays, he was injured, by decline in the actual market value of his crops, as follows: One bale of cotton wasted by being blown and falling out and ruined, of the market value of $110; damages to 15,000 bundles of feed by being frozen before harvest, to the extent of one cent per bundle, $150; 15 tons of maize heads, by reason of exposure to the weather, damaged to the extent of $1 per ton, $15 — none of which damages would have occurred but for the refusal of the bank to release the attachment lien upon said property. That he was forced to employ an attorney to represent him in said case for the sum of $250, which is a reasonable and necessary expense; that because of the levy he was not able to borrow money to hire laborers to save his crops, which he could have done but for the levy, and that by such acts the bank had injured his credit so that he was wholly unable to negotiate a loan for that purpose, and that his credit and reputation for paying his just debts has been injured to the extent of $1,000 that such illegal levy was made with full knowledge of all the facts, and such action was taken willfully and with reckless disregard of his rights, and in making the levy the defendants acted with malice and intent to injure him and his credit; that they knew prior to and at the time of the levy that the maize, corn, cotton, and higera were a part of his homestead, and the writ was sued out without grounds to believe that the facts alleged in the affidavit were true. He charges no malice upon the part of the sheriff, but because of the malice of the other defendant, he sued for exemplary damages in the sum of $5,000.

The defendants answered by general demurrer, eight special exceptions, general denial, and specially allege that the original suit was filed upon a claim which they then considered good and valid debt against the plaintiff, and which they still believe to be a good claim due the bank; that prior to the filing of said suit, plaintiff told the bank officers and attorney that he would not pay the note and would see that the bank did not get a cent of the money and would not himself spend any money to keep from paying said note; that said statements and others to the same effect, together with his conduct, led the defendant bank and its officers to believe that he was about to dispose of his property to prevent said bank from collecting its debt; that said Hilburn, believing that Cooper was going to convey his property in order to avoid having it subjected to the payment of the debt due the bank, made the affidavit for the writ, and in doing so acted in good faith, believing that plaintiff was justly indebted to the bank and was about to dispose of his property for the purpose of defrauding his creditors; that he acted without malice and without any intent to injure the plaintiff or his credit; that the other defendants, in signing said bonds, acted in good faith, without any malice or intent to injure plaintiff or his credit; that the said writ was levied upon the 400 acres of land in the statutory manner; that the sheriff, in making said levy, did not take the land, improvements, or crops thereon into possession, and did not in any manner disturb plaintiff's possession thereof; that plaintiff was never at any time...