Fleming v. Stansell

• Decision Date: 30 May 1896
• Citation: 36 S.W. 504
• Parties: FLEMING v. STANSELL et al.
• Court: Texas Court of Appeals

36 S.W. 504

FLEMING v. STANSELL et al.

Court of Civil Appeals of Texas.

May 30, 1896.

Error from district court, Eastland county; D. K. Scott, Special Judge.

Original action by J. C. Stansell against J. E. Pritchard, in attachment. J. R. Fleming, under a claim bond for the trial of the right to property, took and converted the property to his own use. From judgments on the claim bond in favor of plaintiff Stansell, and R. B. Truly, assignee and intervener, defendant Fleming brings error. Reversed.

Moore & Mack, for plaintiff in error. R. B. Truly, for defendants in error.

STEPHENS, J.

J. C. Stansell caused a stock of furniture belonging to J. E. Pritchard to be attached for a debt due him from Pritchard. J. R. Fleming claimed the property, and obtained possession thereof under affidavit and bond as provided by statute in such cases. He also intervened in the original attachment suit, and sought to enjoin the proceeding for the trial of the rights of property; claiming to be a partnership creditor of Stansell & Pritchard, and as such entitled to an equitable lien on the property attached. This contention, which prevailed in the trial court, was overruled on appeal to the supreme court, as will appear from the opinion of Chief Justice Stayton (81 Tex. 294, 16 S. W. 1033), which contains a careful statement of the issues and facts developed up to that time,—June 5, 1891. That opinion affirmed the judgment in favor of Stansell against Pritchard for $840.06 (which, with interest, amounted to $1,233.75 on the last trial), and held that Stansell was entitled to look to Fleming and the sureties on the claimant's bond for satisfaction thereof. Otherwise the judgment was reversed, but without prejudice to the rights of Fleming as creditor of the other parties, and the cause was remanded for further proceedings. The injunction against the prosecution of the suit for the trial of the rights of property having been thus removed, Stansell made therein, December 21, 1891, the following tender of issues: "(1) That plaintiff in cause No. 350 in this court, as appears from the record and proceedings thereof, had and held a valid and subsisting attachment lien on the property of J. E. Pritchard, the defendant in said suit. (2) That while said attachment lien was in full force and effect, to wit, on or about the 14th day of January, 1887, the defendant J. R. Fleming, by mistake of his agent, as alleged by him in said suit No. 350, claimed such property as the property of said defendant, and took and converted the same to his own use and benefit. (3) That the defendant executed and filed in this cause his claimant's bond in form of law, with J. M. Moore and L. E. Brannin as his sureties, for trial of right to property at the time said property was taken and converted as aforesaid; and said bond, with the oath prescribed for such action, are both filed in this court in this suit, and prayed to be taken and considered as part hereof. (4) That said property so taken and converted was, according to the appraised value thereof, and in fact, of the value of two thousand two hundred and fifty dollars. (5) That on the 28th day of December, 1888, or thereabouts, the plaintiff recovered a judgment against said J. E. Pritchard, in said suit No. 350, for the sum of eight hundred and forty and 66/100 dollars, with interest from the date of said judgment at the rate of ten per cent. per annum, and all costs of suit; that said judgment remains in full force and effect, and is still unsatisfied and unpaid. (6) That by reason of the facts herein alleged, and by virtue of the judgment and decision of the supreme court, and mandate thereof, in said cause No. 350, rendered on the ____ day of June, 1891, which decision and judgment is on file in said cause No. 350, the plaintiff is entitled to look to and to recover from the defendant and his said sureties the full amount of his said judgment against said J. E. Pritchard, with interest accrued, now amounting to the sum of one thousand and ninety dollars, with his costs in said suit incurred. (7) The plaintiff further alleges that by a conveyance in writing, duly acknowledged and filed in this suit on the ____ day of June, 1891, he duly transferred, sold, and conveyed to R. B. Truly, his attorney in this suit, a three-fourths interest in his judgment against said Pritchard, and in the judgment rendered in this suit; and plaintiff prays that the said interest of said R. B. Truly be duly protected and adjudged to him in this suit, and that judgment be rendered herein for the full amount of plaintiff's judgment aforesaid, together with his interest and costs of suit, against the defendant and the said sureties on his said claimant's bond, and for general relief." R. B. Truly intervened, and sought a recovery in his own name for three-fourths of the amount so claimed, by virtue of a transfer made to him January 24, 1891, and filed in the original case June 30, 1891, as follows: "In consideration of the services of R. B. Truly, attorney at law, of Eastland, Texas, in a certain suit in the district and supreme courts of the state of Texas, wherein I am plaintiff, and J. E. Pritchard is defendant, and in which J. R. Fleming intervened, in which suit there was a final judgment rendered in said supreme court in my favor against said J. R. Fleming and his bondsmen in suit No. 353 in the district court of said Eastland county, I, J. C. Stansell, in accordance with a former agreement with said R. B. Truly, do hereby sell unto and transfer to said Truly a three-fourths interest in said judgment, to have and to hold...