Miller v. Dunagan, 3761.

• Citation: 123 S.W.2d 363
• Decision Date: 27 October 1938
• Docket Number: No. 3761.,3761.
• Parties: MILLER et al. v. DUNAGAN.
• Court: Court of Appeals of Texas

Page 363

123 S.W.2d 363

MILLER et al. v. DUNAGAN.

No. 3761.

Court of Civil Appeals of Texas. El Paso.

October 27, 1938.

Rehearing Denied December 1, 1938.

Appeal from District Court, Ector County; Chas. L. Klapproth, Judge.

Action by Don D. Miller and others against H. B. Dunagan and others for damages alleged to have been sustained by reason of the seizure and sale of personal property used in the operation of a café. From a judgment for defendants, plaintiffs appeal in so far as the judgment affects the named defendant.

Affirmed.

T. B. Ridgell, of Dallas, and Moore & Ridgell, of Odessa, for appellants.

R. W. Hamilton and T. D. Kimbrough, both of Midland, for appellee.

NEALON, Chief Justice.

Don Miller and wife, Mamie Miller, and B. R. Dyer sued H. B. Dunagan, John C. Dunagan, B. C. Girdley, John Ames and Maryland Casualty Company. They sought judgment for damages which they alleged were sustained by reason of the seizure and sale of certain personal property used in the operation of a cafe in the City of Odessa. Defendant H. B. Dunagan, as trustee for a former owner, had sold certain chattels constituting part of the equipment of the cafe to Don Miller and B. R. Dyer; and thereafter, charging that they had refused to pay the purchase price of $1,800, had secured judgment against them for a balance of $1,520, with foreclosure of a claimed "purchase money lien." Dyer and Miller appealed to this Court, which after hearing reformed the judgment by eliminating the alleged purchase money lien (99 S.W.2d 434) and affirmed it as respects the money judgment. The appeal was upon a cost bond. No supersedeas bond was ever given.

On December 18, 1935, H. B. Dunagan sought and obtained an attachment against the property of Miller and Dyer. John C. Dunagan and B. C. Girdley were the sureties upon the attachment bond. The writ of attachment was placed in the hands of appellee Ames, who was constable, for execution. He testified that he seized the cafe and its equipment by virtue of the attachment writ. At the same time he padlocked the building and kept the key. He testified that Miller consented to this action. Miller denied that he so consented. Ames was uncertain as to the date of this seizure, but it was sometime prior to the issuance of the order of sale hereinafter mentioned.

February 3, 1936, pending appeal, an order of sale issued out of the District Court directing the seizure and sale of the property described in the judgment of foreclosure. According to the return this order of sale was executed by Constable Ames on February 3, 1936. Miller testified that he agreed that the Constable might take possession of the property described in the order of sale. Sale was made as under execution on February 14, 1936, and said property was purchased by appellee H. B. Dunagan.

Subsequently, on February 18, 1936, execution issued out of the District Court for the amount of the judgment and costs. This writ was executed on the day of issuance by the sheriff of Ector County by levying upon a number of other articles of equipment of said cafe not enumerated in the foreclosure decree. On March 14, 1936, the property so levied upon by the sheriff was sold at execution sale and purchased by H. B. Dunagan.

Appellants sought to recover upon allegations that the levy and sale made by virtue of the order of sale were wrongfully made, that some of the property sold "was never the property of said cafe but was placed in said cafe by plaintiff Don D. Miller and Mrs. Mamie Miller as their own separate property; that all of the property wrongfully seized and sold * * * resulted in damages to plaintiff Mrs. Mamie Miller in the sum of $322.56 and to Don D. Miller in the sum of $539.25"; that the seizure and sale left them "broke" and "unable to go into any other kind of business" to their loss "by reason of such wrongful seizure and sale in the sum of $3,600." Maryland Casualty Company was surety upon the official bond of John Ames as Constable.

Plaintiffs prayed that they "have judgment as follows: "Against all of said defendants for said sum of $861.50 as actual damages for the value of their property sold including fixtures, stock and equipment in said cafe, and for $200.00 loss in expense and for a judgment against H. B. Dunagan and John Ames for $3600.00 additional, for the loss of their income in the operation of said cafe, which they were denied by said seizure and sale, caused by the said H. B. Dunagan and John Ames, and as against the said H. B. Dunagan plaintiffs pray for a...