Garcia v. Hernandez

• Decision Date: 04 November 1920
• Docket Number: (No. 1137.)
• Citation: Garcia v. Hernandez, 226 S.W. 1099 (Tex. App. 1920)
• Parties: GARCIA et al. v. HERNANDEZ.
• Court: Texas Court of Appeals

226 S.W. 1099

GARCIA et al. v. HERNANDEZ.

(No. 1137.)

Court of Civil Appeals of Texas. El Paso.

November 4, 1920.

Rehearing Denied January 13, 1921.

Appeal from Circuit Court, Brewster County; Joseph Jones, Judge.

Action by Felis Hernandez against Bartola Garcia and others in conversion and for exemplary damages. Judgment for plaintiff, and defendants appeal. Affirmed.

See, also, 216 S. W. 477.

W. Van Sickle, of Alpine, and Walthall & Gamble, of El Paso, for appellants.

Mead & Metcalfe, of Marfa, for appellee.

HIGGINS, J.

In a suit pending in the district court of Brewster county, brought by the appellant, Garcia, against Tom Burnam and Jim Mitchell, Garcia caused to be issued a writ of sequestration against 1,200 head of goats then in the possession of Mitchell. Under the writ the goats were seized and thereafter replevied by Garcia. Thereafter the appellee, Hernandez, brought this suit against Bartola Garcia and his son and agent, Wenscelado Garcia, alleging that he, Hernandez, was the owner of the goats, and that they had been converted by the Garcias in the manner above shown, and prayed judgment for the value of the goats as actual damages, and also for exemplary damages for the wrongful and malicious issuance of the writ.

The evidence discloses that Bartola Garcia was forced by the Villistas to leave Mexico in 1913, coming to Texas. When he left Mexico he had various properties, among them a ranch stocked with goats. These goats, subsequent to his departure, were stolen by the Villista General, Rosalio Hernandez, a brother of the appellee. The goats involved in the present controversy were crossed from Mexico into Texas in December, 1916, at Lajitas, Texas. Garcia had been advised of the probable entry of the goats, and sent his son, Wenscelado, to Lajitas. Wenscelado arrived there shortly before the entry of the goats. Appellee testified that the goats were his, having been raised by him and his family in Mexico; that he had commissioned his brother, Miguel Hernandez, and one Luis Flott to pass and sell the goats in Texas. Jim Mitchell was at Lajitas, and expected to purchase the goats. Tom Burnam was also present and it seems advanced to Miguel Hernandez and Flott the funds necessary to pay the import duties. Upon the entry of the goats it appears that Mitchell, the prospective purchaser, became advised that Bartola Garcia, through his son and agent, Wenscelado, was asserting an adverse claim to the goats, and on account of such adverse claim declined to consummate the purchase and pay the purchase money. Thereupon Miguel Hernandez signed a bill of sale for the goats dated December 8th, 1916, reciting that he had that day sold 1,114 goats to Mitchell for the sum of $1,212, and acknowledging the receipt of said sum, and guaranteed the ownership of the goats and Mitchell against all claims thereto.

B. Crawford testified that he was present when this bill of sale was signed, and it was delivered to him with instructions to keep it until Mitchell came to Alpine with the goats and when he paid him (Crawford) to deliver the bill of sale; that Mitchell never paid for the goats, and he never delivered the bill of sale to him.

Jim Mitchell testified:

"That bill of sale was made in my favor, made to me. We had a verbal contract there that if I got the goats and they were not taken away from me I was to pay them the money. Garcia was claiming them, and I figured they might be sequestrated as they were—something of that kind might turn up. There was no time set, only when we got to Alpine and loaded them on the cars, and if there was no trouble, the goats hadn't been taken away from me, I was to pay them the $1,215."

After the delivery of the goats to Mitchell he started to Alpine with them. Bartola Garcia through his son and agent then instituted the sequestration proceedings in the district court of Brewster county, and thereunder the goats on December 12, 1916, and before they reached Alpine, were seized and replevied as above stated.

This is the second appeal of this case. The former opinion appearing in 216 S. W. 477, where the testimony of Wenscelado Garcia, Crawford, and Mitchell is quoted at some length. Their testimony upon the present trial is substantially the same as there quoted. The bill of sale executed by Miguel Hernandez is there quoted in full, and reference is here made to the opinion upon the former appeal for a more particular statement of the testimony of said witnesses and the contents of the bill of sale. A verdict was returned, and judgment rendered in favor of the plaintiff, and the defendant appeals.

The first two assignments of error present the proposition that the cause of action asserted in the second amended petition upon which the suit was tried was barred by the two-year statute of limitation, because such petition was filed more than two years after the accrual of the cause of action. The assignments are predicated upon the theory that the cause of action asserted in the trial amendment is a different cause of action from that set up in the original petition, and is therefore barred. The facts pleaded in the original petition set up that the plaintiff was the owner of the goats, their delivery to Mitchell to be driven to Alpine, and their subsequent seizure under the sequestration proceedings in the district court of Brewster county and replevy thereof by appellant. The facts pleaded in the original petition and second amended one are substantially the same, and the same cause of action is plainly set up in both, for which reason there is no merit in the contention that the cause of action is barred by limitation; the original petition having been filed within the two-year period. Lumber Co. v. Water Co., 94...