McLane v. Kirby & Smith

• Decision Date: 20 February 1909
• Citation: McLane v. Kirby & Smith, 116 S.W. 118, 54 Tex.Civ.App. 113 (Tex. App. 1909)
• Court: Texas Court of Appeals
• Parties: McLANE v. KIRBY & SMITH.

116 S.W. 118

McLANE v. KIRBY & SMITH.

Court of Civil Appeals of Texas.

February 20, 1909.

Error from Dallas County Court; W. M. Holland, Judge.

Action by Kirby & Smith against Martin J. McLane. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

John M. Spellman, Edward V. Hardway, and Terrell & Richardson, for plaintiff in error. Hexter & Kramer, for defendant in error.

TALBOT, J.

This suit was instituted by Kirby & Smith against Martin J. McLane on December 13, 1906, to recover the sum of $375, alleged to be due them as commissions for effecting a sale, as real estate agents, of a certain parcel of land situated in the city of Dallas, known as lot No. 10, in block No. 848-2, and owned by said defendant McLane, to Edward Titche and Sam Dysterbach. At the time of the institution of the suit a writ of attachment was sued out and levied upon said lot as the property of the defendant. The defendant was a nonresident, and citation was issued and served by publication. He did not appear in person, and a local attorney was appointed by the court to represent him. The original return of the officer levying the writ of attachment was as follows: "Came to hand December 13th, 1906, and executed by levying on lot 10, block 848-2 in city and county of Dallas, state of Texas. Levied at 5 o'clock and 35 minutes." On January 28, 1908, this return was amended by the sheriff under an order of the court, so as to show that the day on which the levy was made was "December 13th, 1906." On the 29th day of May, 1907, the said Titche and Dysterbach intervened in the suit, claiming that they had bought the lot on which the attachment was levied on December 14, 1906, for value and without notice of the plaintiff's claim or the levy of said attachment, and attacked the validity of the debt sued on. The cause was called for trial January 28, 1908, and the attorney appointed by the court to represent the defendant interposed a plea to the jurisdiction of the court, which was overruled, and defendant excepted. A jury trial followed, which resulted in a judgment for plaintiffs, and the defendant brings the case to this court by writ of error.

The first assignment of error complains of the trial judge's action in overruling the defendant's plea to the jurisdiction of the court. The contention is, in effect, that the return of the officer who executed the writ of attachment as indorsed thereon, before amended, failed to state the time of the levy of said writ, and did not show even after amendment that the property was levied on as the property of the defendant; that the court erred in allowing the return to be amended, showing the date of the levy, and, as originally made, was insufficient to confer jurisdiction over the person of the defendant and authorize the judgment rendered. We are of the opinion there is no merit in this contention. In the first place, it would seem that the officer's return as originally indorsed on the writ of attachment was sufficient without the amendment permitted by the court, for that it was fairly susceptible of the construction, if not the only construction, that the writ came to hand on December 13, 1906, and was executed by levying the same on the land described in said return on the same day. But that it was within the discretion of the court, and a proper exercise of its discretion, to permit the return to be amended so as to show specifically the day on which it was levied is well settled. Messner v. Lewis, 20 Tex. 225; Hill v. Cunningham, 25 Tex. 26; Drake on Attachments, §§ 212, 213, 214, 215. The interveners were in no position to complain of the action of the court. It is not denied that the levy was actually made as shown by the return and the validity and justness of plaintiff's debt. The only thing they could question by their intervention was established by the verdict of the jury. In the case of Barkley v. Wood (Tex. Civ. App.) 41 S. W. 717, it is said: "The evidence showed a just and bona fide indebtedness due from Wood to Barkley in the amount claimed in the affidavit, and this being established, and the validity of the debt being the only issue that can be raised by an intervenor in such a case, the plaintiff should have had judgment against Boaz preserving his attachment lien on the land." Besides, interveners have not joined in the prosecution of this writ of error, and error, if any, on the part of the trial court affecting their claim or interest, cannot be urged in this court by the plaintiff in error, McLane. Nor was the officer's return on the writ of attachment materially defective, in that it failed to state that the property attached was levied on as the property of the defendant in attachment. The writ sued out in this case was an auxiliary attachment. It directed the officer to seize property belonging to the defendant, and the return showing a levy upon certain property described "it must be intended that it was the property of the defendant." The case of Meuley v. Zeigler, 23 Tex. 88, holding in effect that the return of the officer indorsed on the writ of attachment should state that the property seized was levied on as the property of the defendant, has not been followed by later decisions in this state. Willis & Bro. v. Mooring & Blanchard, 63 Tex. 340; Tobar v. Losano, 6 Tex. Civ. App. 698, 25 S. W. 973. In a good many jurisdictions the rule announced in Meuley v. Zeigler, supra, prevails (4 Cyc. p. 611), but the views expressed in the...