Johnson v. Henderson

• Decision Date: 06 October 1939
• Docket Number: No. 1933.,1933.
• Citation: 132 S.W.2d 458
• Parties: JOHNSON v. HENDERSON et al.
• Court: Texas Court of Appeals

132 S.W.2d 458

JOHNSON v. HENDERSON et al.

No. 1933.

Court of Civil Appeals of Texas. Eastland.

October 6, 1939.

Appeal from Taylor County Court; Lee R. York, Judge.

Action by Mrs. Opal Johnson against Blanche Henderson and others for damages resulting from an automobile collision. Plaintiff caused an attachment to be issued and placed in hands of Constable W. T. McQuary for service. Judgment in the justice court was for plaintiff against defendant for $175, but writ of attachment was quashed. From that judgment, plaintiff appealed to the county court of Taylor county. After appeal, plaintiff with permission of court substituted a bond for original attachment bond. Subsequently, plaintiff filed a motion for judgment under Vernon's Tex.Civ.St.1936, art. 3799 against the constable and the Maryland Casualty Company, surety for the constable. From an adverse judgment, the plaintiff appeals.

Affirmed.

Massey & Mobley, of Abilene, for appellant.

Cox & Hayden and Smith & Eplen, all of Abilene, for appellees.

GRISSOM, Justice.

Opal Johnson filed this suit in a Justice Court of Taylor County against Blanche Henderson, a non-resident of Texas, for damages resulting from an automobile collision which occurred while Miss Henderson was driving her automobile upon a public highway in Texas. (Art. 2039a, Vernon's Tex.Civ.St. 1936.) Plaintiff caused an attachment to be issued and placed in the hands of Constable W. T. McQuary for service. The Henderson automobile, "disassembled" and scattered over the garage floor, was in the possession of a motor company and being repaired by it when found by the Constable. The motor company advised the Constable that it would have a large bill "against the car for repairing it." The Constable advised the motor company of the attachment and told the motor company "he wanted it held under the writ of attachment." Citation was issued for defendant and service had on the Chairman of the State Highway Commission. The judgment in the Justice Court was for plaintiff against defendant for $175, but the writ of attachment was quashed. From this judgment, plaintiff perfected her appeal to the County Court of Taylor County. After the case was appealed plaintiff, with permission of the court, substituted a bond for the original attachment bond.

Upon a trial in the County Court on the 19th day of April, 1938, defendant, Blanche Henderson, failed to appear and the court, a jury being waived, heard evidence and rendered judgment for plaintiff against defendant for $199, for costs and foreclosure of the attachment lien. Order of sale was issued and placed in the hands of said Constable for service. The Constable made return on the order of sale to the effect that the property had been removed from the possession of the Motor Company and apparently had been stolen. On the 19th day of May, 1938, plaintiff filed motion for judgment under Art. 3799, R. S.1925, against the Constable and his surety, the Maryland Casualty Company, asking judgment for $200 plus 10% penalty. Service of notice of said motion was had upon the Constable and surety. Motion by amicus curiae was then filed, alleging in substance that the motion against the Constable should be dismissed because Art. 3799 authorized such proceeding only in case of execution, and did not apply to attachments. The amicus curiae motion was overruled. Answers were filed by the Constable and his surety.

On the 15th day of June, 1938, the court heard and considered the motion of plaintiff against the Constable and his surety, and their answers contesting said proceeding, wherein, among other things, the Constable and his surety moved the court to set aside the original judgment and the order substituting the attachment bond. The judgment recited "And came all parties to this suit and prayed for general relief." The court entered judgment setting aside and vacating the judgment by default theretofore (but at the same term of court) rendered against defendant, Blanche Henderson, and further ordered that "all other judgments, decrees and orders entered in this cause by this court since this record was filed herein, be and the same are hereby in all respects set aside and held for naught, and it is ordered plaintiff take nothing by virtue of her suit, and that the original defendant, Blanche Henderson, and the Constable W. T. McQuary and * * * The Maryland Casualty Company all go hence without day and recover their costs * * *." From the judgment rendered plaintiff has appealed to this court. On plaintiff's request the court filed findings of fact and conclusions of law.

The court found the facts, in substance, as follows:

That the Constable went to the motor company and found "what purported to be the car of the defendant which had been disassembled, and was scattered over the workshop"; that he talked "to the manager of the garage who said he would have a large bill against the car for repairing it. The Constable told the owner he wanted it held under the writ of attachment. The Constable then made a return of the writ to the effect he had attached the car, but the facts were he did not take charge of the car, but told the owner of the garage that it was attached as the property of Blanche Henderson. The court finds that the writ of attachment was never executed because the Constable did not take charge of the property. After the car was repaired the garage man delivered it to the defendant on payment of his bill."

The court further found that the attachment proceedings were quashed in the Justice Court because the attachment bond was executed by a married woman as a surety without the joinder of her husband. The Court found "There is no evidence in the case to show whether or not the car was released before or after the said attachment was quashed in Justice Court." The court found that citation was properly served "except that there was no evidence that a copy of the citation was sent to Miss Henderson by registered mail." The court found that on the trial of the case on the 19th day of April, 1938, the following facts were proved:

"a. That on or about the 22nd day of December, 1937, the plaintiff was driving her automobile on the Texas State Highway in Taylor County, Texas, a few miles east of the City of Abilene, in a careful and prudent manner and that at said time and place she met the defendant, who was operating her car in a negligent and careless manner in that she was passing a truck on a hill, was driving on the left to her side of the highway, and was driving at an excessive rate of speed.

"b. That by reason of such negligence on the part of the defendant, the plaintiff's car was run into and struck and that the said plaintiff's car was of the reasonable market value after the accident of $200 less than immediately prior to the accident.

"c. That writ of attachment was issued out of the Justice Court in the suit, and was returned regular on its face, and the property shown to have been attached, at the time of such levy, was reasonably worth $200.

"7. That thereupon the court entered judgment for the plaintiff, Mrs. Opal Johnson for the sum of $199 for costs of suit, and for a foreclosure on and of her attachment lien, which judgment was later at the same term of court set aside.

"8. That in due time Order of Sale was issued on said attached property and was returned by the Constable, with the notation:

`failing to find the within described property. Looks like someone stole this property—it is not here in Taylor County.'

"9. That thereafter during the same term of court the plaintiff filed motion for judgment against the said Constable, W. T. McQuary, and his bondsman the Maryland Casualty Company for judgment as provided by Article 3799, Revised Civil Statutes of Texas.

"10. That thereupon answer and appearance were entered in said motion by Cox & Hayden as attorneys for W. T. McQuary, Constable, and by Smith & Eplen as attorneys for Maryland Casualty Company.

"11. That upon a hearing on the said motion all of the above facts were stipulated and agreed by the attorneys for the parties, and it was further agreed that the attached automobile was removed from the garage of Allison-Stevens Motor Company by the defendant."

The court further found that after the institution of suit plaintiff assigned her cause of action to her attorney, Frank Massey. That plaintiff had a policy of "collision insurance" and had collected the amount due her under such policy. That the original attachment bond was signed by a married woman; that Blanche Henderson had no property within the jurisdiction of the court.

The court's conclusions of law were in substance as follows: (1) When the plaintiff accepted settlement with her insurance carrier, with which she carried a "collision insurance" policy, her claim against Blanche Henderson was settled and she had no interest to assign to Frank Massey "and her rights became moot, and the suit could not be further prosecuted." (2) That the attachment bond in Justice Court was defective because one of the sureties was a married woman, and there was no authority in law for curing such defect by substituting the bond in the county court. (3) That the attachment having been quashed, and the property released, the Constable could not be held liable for the property and, therefore, his surety was likewise not liable. (4) That no attachment was effected "because the property was not taken possession of by the Constable."

Appellees have filed in this court a motion to dismiss the appeal because the judgment fails to show either exception or notice of appeal by plaintiff. The judgment does show exception and notice of appeal by "defendant." Since the defendants had completely won their case, it is apparent that writing the word "defendant" in the judgment in connection with the exception and notice of appeal, instead of the word "plaintiff," was a typographical error. However, appellant has filed in this...