First State Bank v. Jones & Nixon

• Decision Date: 19 March 1910
• Citation: 139 S.W. 671
• Parties: FIRST STATE BANK OF HAMLIN et al. v. JONES & NIXON.
• Court: Texas Court of Appeals

139 S.W. 671

FIRST STATE BANK OF HAMLIN et al. v. JONES & NIXON.

Court of Civil Appeals of Texas. Ft. Worth.

March 19, 1910.

On Motion for Rehearing, April 30, 1910.

Appeal from District Court, Jones County.

Action by Jones & Nixon against the First National Bank of Hamlin and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Woodruff & Woodruff, C. H. Steele, G. M. Shelton, and Spence, Knight, Baker & Harris, for appellants. W. T. Shannon, J. W. Boynton, and J. B. McMahon, for appellees.

CONNER, C. J.

Appellees, as partners, instituted this suit on the 14th of March, 1908, against appellant First State Bank of Hamlin, a private corporation, and against W. H. Hollis, as sheriff of Jones county, and against B. S. Davidson, Ed Kennedy, and C. H. Steele, sureties upon the officer's bond, to recover damages for the alleged wrongful seizure and conversion of 1,042 cords of wood, alleged to belong to the plaintiffs and to have been wrongfully converted to the use of the defendants, under a writ of attachment, issued at the suit of the First State Bank of Hamlin, against the said F. L. Nixon. Among other things not necessary to notice, the defendants pleaded the general denial, and the sheriff specially that the attachment proceedings against Nixon had been dismissed "and the property levied upon returned to him; that Nixon disclaimed any ownership to the property so attached, and refused to receive the same." A trial before a jury resulted in a verdict and judgment for appellees against all of the appellants in the sum of $2,510, as actual damages, with 6 per cent. interest thereon from March 21, 1908, with verdict and judgment in like amount against the appellant bank in favor of the defendant sheriff and his bondsmen.

One of the appellants' propositions to an assignment of error complaining of the judgment presents the question of whether appellees were entitled to the value, as for a conversion, of all of the wood upon which the writ of attachment was levied, and we have concluded that the evidence fails to show that they were.

The evidence, in substance, shows without dispute that the writ of attachment mentioned was issued at the instance of the appellant bank, in a suit by it against appellee F. L. Nixon; that at the time the writ was received by the officer all of the wood in controversy, except about 150 or 200 cords, was corded upon a railroad right of way, in the town of Hamlin, presumably preparatory to sale and shipment, the remainder being situated in scattered cords in a nearby pasture, where woodcutters had left it. The levy was made by the officer notifying appellee Nixon that he "had papers for him, and would have to take possession of the wood," and by making return upon the writ that he had levied the same by taking the wood "into his possession." It also seems to be undisputed that upon inquiry made one of the officers of the appellant bank stated to the other partner, Jones, that it was not intended to levy upon his interest in the wood, and that he could get his part at any time. Some time thereafter the defendant Nixon in the attachment suit presented a plea in abatement of the action, and also a motion to quash the writ of attachment, because of an alleged insufficiency in the attachment bond. The plea in abatement was sustained, the writ of attachment quashed, and the suit dismissed. It seems further undisputed that during the pendency of the attachment suit nothing was done by the officer in relation to the property attached, save that, at the instance of some of the parties, he removed some 50 or 60 cords out of the pasture, where it had been corded, to the right of way, where the larger part was situated, and that to provide for the expense of so doing he disposed of some 10 or 12 cords of the wood.

Revised Statutes 1895, art. 216, so far as pertinent, provides that: "Should the attachment be quashed or otherwise vacated * * * the court shall make the proper order making disposition of the property, or the proceeds of the sale thereof, if the same has been sold under order of the court, directing that it be turned over to the defendant." By this statute it is made the duty of the court to order the return of the attached property, when it yet remains in the custody of the officer, and, of course, of the attaching officer to carry the order into effect. And where the defendant invokes such action there must be a correlated duty on the part of the debtor to receive the property. If, then, in a case coming within the statute, the property be returned to the debtor, or he so elect to receive it, it seems manifest that a suit for conversion cannot thereafter be maintained. The debtor cannot, as in other cases, refuse to receive the property, but is only entitled to recover on account of the wrongful attachment such special damages in the way of loss or deterioration in the value of the property, etc., as has been naturally and proximately caused by the levy and detention. The debtor may thus be afforded adequate compensation for the wrong done him, and this is the prime object of all rules for the measurement of damages. See Hogan v. Kellum, 13 Tex. 396. In this case, as stated, the sheriff pleaded a return of the attached property, but the court evidently proceeded on the theory that there was no evidence in support of the plea, and that hence the conversion alleged was indisputably established; for he peremptorily instructed the jury, to which error is also assigned to the effect that the writ of attachment offered in evidence was unauthorized by law, and that by the term "conversion" was meant, "where an officer seizes property under a void writ."

But is this true? We think not. There was an undoubted conversion of the wood sold, for the value of which, with legal interest thereon from the date of the conversion, all appellants are liable; but by far the greater quantity of the wood was at the time of the dissolution of the attachment in the precise condition and situation, so far as the evidence shows, it was when levied upon, and the evidence, to which we have adverted, at least tends to show, if it does not establish, such return to appellees as the circumstances required. The wood, to which we are now referring, while...