Livingstone v. Wright

• Decision Date: 18 October 1887
• Citation: 5 S.W. 407
• Parties: LIVINGSTONE v. WRIGHT and another.
• Court: Texas Supreme Court

Page 407

5 S.W. 407

LIVINGSTONE v. WRIGHT and another.

Supreme Court of Texas.

October 18, 1887.

Appeal from district court, Dallas county; GEORGE N. ALDRIDGE, Judge.

James E. Simpson, for appellant. Wright, Wright & Eckford, for appellees.

GAINES, J.

The appellees leased to one A. F. Peet the lower story of a brick house for the period of nine months, beginning April 1, 1882. The lessee agreed to pay a rent of $675, payable in sums of $75 at the end of each month for which the lease was to continue, and it was agreed that, in the event of a failure to pay any one of the monthly installments, the whole rent was to become due. Peet paid the first installment, but failed to pay the second, and very soon after his default sold to appellant all the property placed by him upon the rented premises, which consisted mainly of the furniture and fixtures of a restaurant. Appellees thereupon sued out a distress warrant, and levied it upon the property so sold, when appellant made out and filed a claimant's bond for the trial of the right of property as authorized by statute. The distress warrant having been returned into the district court, appellees recovered a judgment by default against the defendant Peet for the full amount of the unpaid rent. Subsequently, upon a trial of the right of property under appellant's claim, appellees obtained a judgment against appellant and the sureties on his bond, for the value of the property distrained, with interest and damages, and from this judgment this appeal is taken.

It appears from the testimony that appellees relet the rented premises from the first day of September, 1882, until the end of Peet's term, and received the rent for that time. Appellant now assigns that "the court erred in pronouncing judgment for the rental accruing after plaintiffs had voluntarily forfeited and determined their lease by letting their premises to other tenants." But we are of opinion that the court did not so err. The proceeding for the trial of the right of property is purely statutory, and the ultimate question to be determined is whether or not the property levied upon be subject to lawful seizure under the writ. The statute, in our opinion, does not contemplate that the claimant should be permitted to go behind this question, and inquire into the amount of the debt to secure which the writ has been issued. The latter issue must be determined in the original suit between the plaintiff and defendant, and we find in the law no...