Kelly v. Rochelle

• Decision Date: 20 January 1906
• Parties: KELLY et al. v. ROCHELLE et al.
• Court: Texas Court of Appeals

93 S.W. 164

KELLY et al. v. ROCHELLE et al.

Court of Civil Appeals of Texas.

January 20, 1906.

Rehearing Denied February 10, 1906.

Appeal from Bowie County Court; Sam. H. Imelser, Judge.

Action by T. F. Kelly and others against J. T. Rochelle and another, in which the Dallas Brewery intervened. From a judgment for defendants and the intervener, certain of the plaintiffs appeal. Affirmed.

Heart, Mahaffey & Thomas, for appellants. R. R. Lockett and J. J. Eckford, for appellees.

TALBOT, J.

This action was brought by T. F. Kelly and the appellants, Daniel and Olivari, to restrain by injunction J. F. Rochelle, as constable of Bowie county, Tex., from enforcing an execution issued upon a judgment rendered January 31, 1902, in the county court of said county in favor of the Dallas Brewery, and against said Kelly and appellants for the sum of $300, and interest, upon a claim for rent, and upon a replevy bond signed by appellants, as sureties, given in distress warrant proceedings had in the cause in which said judgment was recovered, and to restrain Frank A. King, as clerk of said court, from issuing any other execution on said judgment. The injunction sued out and sought to be made perpetual by appellants was predicated upon the claim that the judgment mentioned was void for the reason that the Dallas Brewery, when it instituted its suit, in which said judgment was rendered, was a private corporation, and before and at the time said suit was tried and said judgment entered, said corporation had been dissolved. On January 30, 1905, the defendants, King and Rochelle filed herein a motion to dissolve the injunction for reasons which need not be stated, and on the same day appellee the Dallas Brewery, a new corporation chartered March 1, 1902, filed a plea of intervention alleging in substance that it was the owner of all the assets of the old Dallas Brewery, including the said judgment against Kelly and the appellants, as well as the cause of action, upon which same was rendered; that in the suit of the original Dallas Brewery upon its claim for rent against T. F. Kelly, a distress warrant was sued out and a sufficient amount of his goods, upon which it had landlord's statutory lien, seized thereunder to pay off and satisfy said claim; that upon the siezure of said property the said Kelly executed and delivered to the officer making such seizure a replevy bond payable and conditioned as required by law in such cases, with appellants Daniel and Olivari, as sureties thereon, whereupon said property was returned and delivered to them; that after the dissolution of the old Dallas Brewery no receiver was appointed for it, and its president and directors became trustees for the creditors and stockholders thereof, and entitled to the control and management of its assets; that after paying all the old corporation's debts, said trustees, with full authority to do so, transferred and assigned the claims against T. F. Kelly and appellants to the new Dallas Brewery. Upon a trial without the intervention of a jury, judgment was rendered, in favor of Rochelle and King, dissolving the temporary injunction which had been granted, and for costs. It was further adjudged that the intervener, Dallas Brewery, recover of T. F. Kelly, as principal, and O. J. Daniel and B. Olivari, sureties on the replevy bond, the sum of $300, with interest thereon, and costs of suit. From this judgment, Daniel and Olivari alone have appealed.

The case comes to us on an agreed statement of the facts, from which it appears as alleged that on the 10th day of January, 1901, the Dallas Brewery, then a private corporation, caused to be issued from the justice court of precinct No. 1, of Bowie county, Tex., a distress warrant against T. F. Kelly, and caused the same to be levied on $347 worth of said Kelly's property, upon which it has a landlord's lien, to secure the payment of the $300 due by him for the rent of a certain building situated in the city of Texarkana, Tex. On the same day of the seizure of this property, Kelly replevied the same by executing a replevy bond in due form of law with appellants, O. J. Daniel and Ben Olivari, as sureties thereon. This bond was approved and the property seized, released. The distress warrant proceedings were, thereafter, and in due time, filed in the county court of said county, petition filed and the cause tried on the 31st day of January, 1902, resulting in a judgment in favor of the Dallas Brewery against said Kelly and appellants herein, as his sureties upon his said replevy bond for the sum of $300, and interest, and a foreclosure of his landlord's lien, and for costs of suit. Prior to the rendition of this judgment, and on, to wit, December 3, 1901, the charter of the Dallas Brewery, the sole plaintiff in said cause, had been forfeited by a judgment of the district court of Travis county, Tex., and said corporation thereby dissolved. After the dissolution of said corporation its president and directors, as trustees, under the statute of this state, took possession of its assets to be administered for the benefit of the creditors and stockholders of said corporation. On March 1, 1902, a new corporation under the name of Dallas Brewery was created under the laws of this state, and the trustees of the old company, after paying its debts, assigned by authority of the stockholders of said old company corporation, the said judgment against Kelly and appellants, and the original cause of action upon which it was rendered. The old Dallas Brewery at the time...