"Appellee, Paul Gallas, instituted this suit against appellant, W. T. Montgomery, in the district court for the Forty-Fifth judicial district on June 10, 1919, by petition alleging, in substance, that on the 1st day of June, 1917, he, Gallas, owned and was entitled to the possession of certain mules, wagons, harness, tents, and a certain water wagon, alleging a value for each of said items; that on said date said personal property was in the actual possession of said Montgomery in the state of Kentucky, and that said Montgomery had continuously since said date withheld the possession of said property from said Gallas, but had used the same for his, the said Montgomery's, own use and benefit, and was still holding and using the same.
"That the value of the use of said property during the whole of said period was one thousand six hundred twelve and 50/100 ($1,612.50) dollars per year; that by reason of said Montgomery's improper care of said property it had depreciated in value to the extent of two thousand four hundred ($2,400.00) dollars; and prayed for judgment restoring possession to him, and for his damages measured by the value of the use and depreciation in value of said property, with interest thereon.
"On October 6, 1919, said Montgomery answered by general denial and demurrer.
"On January 5, 1920, the day the case went to trial, plaintiff filed his first amended original petition, by way of which he alleged in substance:
"That on June 11, 1916, he, Gallas, owned and was in possession of a certain outfit called a contractor's road-making outfit, consisting of certain mules, wagons, harness, tents, and a water wagon, all being located in Kaufman county, Texas, and being then and there used by plaintiff in constructing roads; that the mules were then and there worth $275.00 each, the wagons seventy-five ($75.00) dollars each, the tents fifty ($50.00) dollars each, the water tank sixty ($60.00) dollars, and the harness fifty ($50.00) dollars per set.
"That on said June 13, 1916, said Montgomery, through an illegal sequestration and subsequent replevy, deprived said Gallas of the possession of said property and took possession thereof himself.
"That on March 19, 1917, in a suit between the parties, then pending in the Seventy-Third judicial district of Texas, it was adjudicated that said writ of sequestration was illegally issued, and said writ was by judgment and order of court quashed and suppressed, with the further order that the property taken from the possession of said Gallas under said writ be restored to the possession of said Gallas.
"That in said suit in which the writ of sequestration was quashed the said Gallas was by cross-action seeking judgment against the said Montgomery for the wrongful detention of said property by him, pleading especially that he was entitled to recover of said Montgomery the value of the use of said property during the time Montgomery wrongfully detained said property. Montgomery in said suit denied that he was liable to said Gallas for detaining said property. That a trial was had in the district court for the Fifty-Seventh judicial district, to which court said cause had been transferred, and on the issues so joined a verdict of the jury was obtained, and on said verdict judgment entered establishing the possession of said property on the part of said Montgomery as wrongful, and holding said Montgomery liable in damages to said Gallas for the wrongful detention thereof; said judgment having been obtained on the 1st day of June, 1917, and being, in part, in favor of the said Gallas, and against the said Montgomery, for the sum of two thousand two hundred ninety ($2,290.00) dollars as damages for the value of the use of said property for a period beginning ten days after the date of the levy of the writ of sequestration and down to the date of said judgment, and offset said amount against the sums due on certain notes, secured by a chattel mortgage on said property, made the basis of said Montgomery's suit against the said Gallas.
"That said Montgomery prosecuted an appeal from the judgment next above referred to, and that this honorable Court of Appeals affirmed the judgment of the district court in so far as the award of damages in favor of Gallas and against Montgomery for the value of the use of said property was concerned. That, by reason of the action of the Court of Civil Appeals as set out, the judgment and order of the district court of Bexar county for the Seventy-Third judicial district of Texas, adjudicating that said writ of sequestration was illegally issued, and ordering said Montgomery to restore said property to the possession of said Gallas, and also the judgment of the district court of Bexar county for the Fifty-Seventh judicial district, adjudicating that the said Montgomery wrongfully detained said property from the possession of said Gallas, became absolutely final, and that said judgments and order were in full force and effect, and had been in full force and effect from the dates upon which they were respectively entered.
"That in spite of said final judgments, above recited, the said Montgomery had continuously failed and refused to obey the order of said court requiring him to deliver possession of said property to said Gallas, but had refused deliberately and maliciously to return said property to said Gallas, and still deliberately and maliciously refused to so return the same.
"That the value of the use of said property from June 1, 1917, to the time of filing of said first amended original petition was reasonably the sum of nine thousand nine hundred sixty ($9,960.00) dollars for each and every year, making a total to the date of the filing of said pleading of twenty-four thousand seven hundred fifty-four ($24,754.00) dollars.
"That during the time said Montgomery was unlawfully withholding the possession of said property from Gallas, through his improper care of the same, the value of said property had depreciated to the extent of four thousand four hundred fifty ($4,450.00) dollars.
"That said Montgomery has so acted in the premises for the purpose of injuring plaintiff deliberately, willfully, and maliciously; that said Montgomery had removed said property from the state of Texas and into the state of Kentucky, and instead of bringing said property back to the state of Texas, so that same could be utilized for the purpose of paying off and satisfying a certain judgment in favor of Montgomery and against said Gallas, said Montgomery had kept said property and used the same for his own benefit in utter disregard of the judgment of the court, thereby becoming liable to said Gallas in the sum of seven thousand ($7,000.00) dollars as exemplary damages, in addition to the actual damages theretofore set up by said Gallas.
"In said amended pleading said Gallas further alleged that he had been informed and believed that Montgomery had disposed of some of said property, or that some of said property was beyond the jurisdiction of the court, in which said suit so filed; pleading his inability to designate the property so disposed of or held beyond the jurisdiction of the court, and asking for judgment for the value of any of said property not produced or accounted for by the said Montgomery; pleading the market value of said property at the time of the trial as follows: two hundred ($200.00) dollars per head or four hundred ($400.00) dollars per span for the mules, forty ($40.00) dollars for each wagon, fifty ($50.00) dollars per set of harness, and forty ($40.00) dollars for said water wagon; further alleging that the tents, even had they been properly cared for, would on the date of the filing of said pleading be worthless.
"In said amended petition said Gallas pleaded for a judgment ordering said property restored to him, for judgment for the value of the use of said property from the 1st day of June, 1917, to date of judgment, for depreciation in the value of said property during this detention, for the value of such of said property as was not produced or properly accounted for, and for his exemplary damages.
"To said amended pleading the defendant, Montgomery, replied by first amended original answer, containing general demurrer and general denial, and pleaded especially that during all the time said property was withheld from the plaintiff he, the said Montgomery, held said property as mortgagee for his protection as provided for in a mortgage on said property given him by said Gallas, denying that he asserted any claim of ownership to said property. Said Montgomery further alleged that in said suit of Montgomery v. Gallas, No. B-12359, tried in the Fifty-Seventh district court of Bexar county, being the same suit in which was rendered the judgment pleaded by said Gallas, that he, the said Montgomery, recovered judgment against Gallas for one thousand five hundred fifty-seven and 56/100 ($1,557.56) dollars, together with interest thereon from the 26th day of May, 1917, and costs of court, said sum remaining after allowing the recovery on said Gallas' cross-action; that on said judgment there was, at the date of filing of said amended answer, due and unpaid the sum of three thousand three hundred seventy and 71/100 ($3,370.71) dollars; that the payment of said sum was secured by chattel mortgage...
