Hawkins v. First Nat. Bank

• Decision Date: 06 March 1915
• Docket Number: (No. 737.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 175 S.W. 163
• Parties: HAWKINS v. FIRST NAT. BANK OF CANYON, TEXAS.
• Court: Texas Court of Appeals

175 S.W. 163

HAWKINS v. FIRST NAT. BANK OF CANYON, TEXAS.

(No. 737.)^†

Court of Civil Appeals of Texas. Amarillo.

March 6, 1915.

Rehearing Denied April 3, 1915.

Error from District Court, Randall County; Jas. N. Browning, Judge.

Action by the First National Bank of Canyon, Texas, against H. H. Hawkins. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Carl Gilliland, of Hereford, for plaintiff in error. Turner & Rollins, of Amarillo, and Rector L. Lester, of Canyon, for defendant in error.

HUFF, C. J.

The defendant in error, the First National Bank of Canyon, instituted this suit against plaintiff in error, H. H. Hawkins, on a note for $2,070.40, with 10 per cent. interest from date and 10 per cent. attorney's fees. The note is alleged to have been dated August 9, 1913, and due 45 days from date. Interest is alleged to have been paid up to November 9, 1913. The suit is also to foreclose a chattel mortgage on 1,000 head of grown sheep and 700 head of spring lambs, all branded O around the hip bone and in various marks, located about 16 miles west from Hereford on a place known as the Bob Mount place. Defendant in error sued out a writ of sequestration, making affidavit and bond, and caused a writ of sequestration to be issued thereon, which was placed in the hands of the sheriff of Deaf Smith county, who executed the same on the 22d day of November, 1913, by sequestrating as the property of H. H. Hawkins:

"520 ewe sheep, branded O, paint brand on either hip or side, each valued at $2.00 per head, or a total of $1,040.00; also 364 ewe sheep branded O paint brand, on either right hip or side, each valued by me at $2.00 per head, or a total of $728.00; also 276 lambs branded O on either right hip or side, paint brand, valued by me at $2.00 per head, or a total of $552.00; also 46 lambs, branded O on either right hip or side, paint brand, valued by me at $2.00 per head or a total of $92.00; also 25 buck sheep, 23 of which are branded W O on right side, paint brand, and three of which branded on back near hip paint brand, valued at $10.00 per head or a total of $250.00. The total value of all property levied on is $2,662.00."

The plaintiff in error answered by exceptions and by certain other pleas not necessary at this time to set out. He also moved to quash the sequestration proceedings. There is no statement of facts in the record, and the case is here alone upon the pleadings, exceptions, sequestration proceedings, judgments of the court, and assignments of error.

The first assignment of error is presented as a fundamental error, on the ground, as we gather, that the judgment is for the principal, interest, and attorney's fees foreclosing the mortgage lien on the sheep seized under the writ of sequestration, and that the affidavit for the writ only gave the principal and interest of the note sued on and does not set up the attorney's fees. If the above assignment presents error, we do not think it is such fundamental error as can be reached by assignments presented for the first time in this court. The affidavit for sequestration is required to state the amount still unsatisfied and the date when due. Attorney's fees are contingent in their nature and depend upon the judgment of the court for their final ascertainment, and it appears for that reason the affidavit need not set out attorney's fees. Aultman v. Smyth, 43 S. W. 932; Bank v. Robinson, 104 Tex. 166, 135 S. W. 372. It has been held in this state that the affidavit in sequestration and in an attachment, if it states an amount less than the amount claimed in the petition, furnishes no grounds to quash the proceedings. Aultman v. Smyth, supra; Evans v. Lawson, 64 Tex. page 201. We therefore think the judgment could be rendered for the attorney's fees sued for and set out in the petition, even though the affidavit only set out the debt actually due at the time of making it. Certainly there was no fundamental error in the judgment.

By his second assignment of error, plaintiff in error alleges error in the action of the court in refusing to sustain his motion to quash the sequestration proceedings. The fifth proposition thereunder is that the bond for sequestration is defective, in that it does not purport to have been signed by the principal or by any person having authority to execute it for the bank. The bond is signed, "The First National Bank of Canyon, by L. T. Lester, Pt." It has long been the rule in this state, where the bond purports to be the act of the plaintiff by an agent, his authority will be presumed on the motion to quash. If it is intended to question the agent's authority, it must be done by a plea to that effect. The agent's authority is a matter of evidence aliunde and forms no part of the bond, and upon a motion to quash the court will presume the authority of the agent. Messner v. Hutchins, 17 Tex. page 602; Wright v. Smith, 19 Tex. 297; Bank v. Cupp, 59 Tex. 270.

The plaintiff in error further sought to quash the return of the sheriff on the writ of sequestration because the brands on the sheep are described as being on the animals at a different place to that called for in the mortgage as set out by the petition, affidavit, and writ, and there is such variance that the return should be quashed. As the propositions are presented, we are left to surmise the position of the respective parties and the grounds upon which the court acted in overruling the motion. The brand set out in the petition is described as being O around the hip bone; the return of the officer shows the brand to be O on either side or hip. Plaintiff in error contends the brand described in the petition, etc., is a circle around the hip bone. It is suggested by defendant in error that the instruments do not necessarily mean that such brand encircled the hip bone and that the meaning of "around" is "near," or "in the neighborhood of." As copied in the record, the brand is not designated as a circle, but it appears to be the letter O. In the condition of the record we are not able to say that the brand means the encircling of the hip bone. It is as consistent to interpret its meaning that the brand was near to the hip bone on the animal. If such is the meaning, the brands set out are not necessarily at variance with the writ, affidavit, and petition. The writ of sequestration is required by statute, and in this case it does so, to command the...