Loustaunau v. Lambert

• Decision Date: 02 November 1892
• Citation: 20 S.W. 937
• Parties: LOUSTAUNAU <I>et al.</I> v. LAMBERT <I>et al.</I>
• Court: Texas Court of Appeals

20 S.W. 937

LOUSTAUNAU et al. v. LAMBERT et al.

Court of Civil Appeals of Texas.

November 2, 1892.

Appeal from district court, Bexar county.

Action by Mary E. Lambert and others, creditors of Richard S. Lambert, against J. Loustaunau and Paul Bergeron to enjoin defendants from executing a certain judgment recovered by J. Loustaunau & Co. against Richard S. Lambert for rent of a store building, and to restrain them from receiving from the clerk certain money, the proceeds of said Lambert's stock of goods, in payment of said judgment. From a judgment for plaintiffs, defendants appeal. Affirmed.

Upon & Bergstrom, for appellants. Lee Tarlton and C. A. Keller, for appellees.

COLLARD, J.

This is a suit brought in the district court of the thirty-seventh judicial district of Texas, for and in the county of Bexar, state of Texas, by Mary E. Lambert and others, creditors of Richard S. Lambert, against the appellants, J. Loustaunau and Paul Bergeron, to enjoin the said appellants from executing a certain judgment recovered by the said J. Loustaunau & Co. against Richard S. Lambert for the sum of $2,625, and to restrain them from receiving and collecting from the clerk of the court the said sum, which had been realized out of the property and stock of goods of the said Richard S. Lambert, levied upon by the said Loustaunau & Co., under a distress warrant, for rents due and to become due to them from Richard S. Lambert and the appellees herein, as attaching creditors of the said Richard S. Lambert. Upon the filing of the said petition by the appellees herein, a temporary injunction was issued, and upon final trial verdict and judgment were rendered in favor of the said appellees, and against the appellants, enjoining the appellants from receiving or collecting any of said moneys until appellees' judgments as creditors of said Richard S. Lambert, amounting to more than the sum of $2,625, are first paid, leaving nothing to apply to appellants' claim and judgment against said Richard S. Lambert for rents due or to become due under said lease, from which judgment the appellants, after the overruling of their motion for a new trial, have appealed.

The first assignment of error is as follows: "The court erred in overruling defendants' general demurrer to plaintiffs' petition, because neither said petition nor the first supplemental petition shows any legal or equitable cause of action, in this: That plaintiffs' said petition shows that the appellants, J. Loustaunau & Co., were the landlords of Richard S. Lambert, and that the stock of goods owned by the said Lambert, and contained in the storehouse rented from the appellants, had been levied upon by execution and distress warrant, and that the proceeds of such goods were in the hands of the clerk of the district court, and that the said Lambert had rented the storehouse from appellants under contract executed May 18, A. D. 1889, and to run for three years, beginning October 1, A. D. 1889, and that no part of said rent had been paid, except ($75.00) seventy-five dollars, and that the balance due hereon, to wit, $2,625.00, was a lien upon said stock of goods, and appellants had a right, superior to the creditors of Richard S. Lambert, to have the same paid out of the proceeds of said stock of goods." The petition is good, as against a general demurrer. It does allege that Loustaunau & Co. had leased the property, and had obtained a judgment foreclosing a lien upon the goods in the store, and an order for the clerk to deliver to them a sufficient amount of the proceeds of the sale to satisfy the judgment; but the petition also shows that the lease was unexpired, — most of the time still to run; that the rent was to be paid, $75 monthly, in advance; that the plaintiffs were not parties to the judgment; assigning a satisfactory reason for not intervening in the rent suit; setting up their debts; their prior levy; that the sale of the goods was upon order of the court in the attachment suits as well as the rent suit; that defendants had assumed control of the store, and had prevented it being rented, raising the price, and doing other acts indicating an abandonment of their rights under the lease. The petition further shows that Morgan Wilson became the owner of the leasehold estate of the absconding tenant, and so became liable for the unpaid rent, and has been ready and willing, and has tendered to Loustaunau the rent, as it became due thereunder, for the full term of the lease; "that Wilson or the said Loustaunau & Co." leased the premises to one Ben Moke on the 12th day of February, 1890, for the unexpired term, for $80 per month, $75 of which were to be paid to Loustaunau & Co.; and, if the lease was made by Wilson, it was so made by and with the consent of Loustaunau & Co., they requiring a further sum of $5 per month for rent of their shelving and fixtures in the house, which was a condition precedent to the leasing. It is further alleged that Loustaunau & Co. did receive the rent from Moke for the premises $80 per month, up to the 1st day of March, 1890, (suit filed March 8, 1890;) that the defendants have, by their acts and conduct, waived and released any lien they ever had upon the goods. The supplemental petition, filed October 19, 1891, shows that Ben Moke has, from the date of the filing of the original petition, paid defendants $80 per month rent for the premises; that all the rents due under the lease prior to that time have been fully paid; that defendants had accepted Moke as lessee of the premises for the full unexpired term of the Lambert lease, and had thereby released all lien thereunder.

We have selected the foregoing allegations from the petitions as sufficient grounds for this suit, and the relief asked. If Loustaunau & Co. did not waive and relinquish their lien by their interference with the renting of the property to responsible persons, as alleged, by the receipt of rents, and by their assumed control of the same before their judgment was rendered, the petitions show that they have done so since. If their rents have been paid up to the time the supplemental petition was filed, and they have accepted Moke as lessee for the remainder of the term, their judgment will be deemed satisfied, and they would have no interest in the funds deposited with the clerk. Their judgment could be satisfied by payment or by part payment, and their acceptance of another lessee for the remainder of the term.

We find the material facts in evidence on the trial as follows: On the 18th May, 1889, Lambert rented the premises in question for three years, from Loustaunau & Co., to commence October 1, 1889, at $75 per month, in advance. After paying the first month's rent, on the 10th of October, 1889, he abandoned the business, and absconded. His wife, to whom he was indebted in the amount of $2,508, and other creditors, plaintiffs herein, sued him, and attached the goods in his store, (the suits being brought from the 11th to the 14th of October, 1889, inclusive.) On the 1st of November, 1889, Loustaunau & Co. sued out (the October rent having been paid) a distress warrant, before a justice of the peace, for the rent to become due for the full term of the lease, unpaid from the 1st of November, 1889, to the 1st of October, 1892, — 2 years and 11 months, — and levied on the same goods then in the hands of the sheriff by the levy of the attachments; the distress warrant being made returnable to the next term of the district court of Bexar county. On the 5th of December, 1889, the landlords filed the proceedings in distress and their petition in the district court, setting up their rental rights; and on the 12th of December, 1889, they recovered judgment against R. S. Lambert for $2,625 rent, with foreclosure of landlord's lien, and order to clerk to pay the amount out of funds...