Morris Plan Bank of Fort Worth v. Ogden

• Decision Date: 01 November 1940
• Docket Number: No. 14133.,14133.
• Citation: 144 S.W.2d 998
• Parties: MORRIS PLAN BANK OF FORT WORTH v. OGDEN et al.
• Court: Texas Court of Appeals

144 S.W.2d 998

MORRIS PLAN BANK OF FORT WORTH v. OGDEN et al.

No. 14133.

Court of Civil Appeals of Texas. Fort Worth.

November 1, 1940.

Rehearing Denied November 29, 1940.

Appeal from District Court, Harrison County; W. H. Strength, Judge.

Suit by Robert Ogden against the Morris Plan Bank of Fort Worth and another to remove cloud from the title and for damages to realty resulting from levy of execution. From an order overruling a plea of privilege filed by named defendant, named defendant appeals.

Reversed, judgment rendered sustaining the plea, and case remanded, with instructions.

McGown, McGown, Godfrey & Logan, B. E. Godfrey, and John M. Scott, all of Fort Worth, for appellant.

Blalock, Blalock, Lohman & Blalock, of Marshall, Wilson, Ogden & Reichman, of Dallas, and Edward L. Peteet, of Marshall, for appellees.

DUNKLIN, Chief Justice.

This suit was instituted in the district court of Harrison County by Robert Ogden, residing in Dallas County, against J. H. Wilson, sheriff of Harrison County, and the Morris Plan Bank of Fort Worth, a private corporation, with its principal place of business in Fort Worth, Tarrant County, hereinafter referred to as the Bank. The Bank filed its plea of privilege in statutory form to be sued in Tarrant County, and it has prosecuted this appeal from an order of court overruling that plea.

The facts alleged in plaintiff's pleading as a basis for his suit and the relief sought, may be summarized as follows:

The Bank, as owner and holder of a personal judgment in its favor, rendered by the County Court at Law in Tarrant County against R. H. Ogden, H. J. Patton and Bernard Tinsley, caused an execution to be issued thereon, of date May 29th, 1939, directed to the sheriff or any constable of Harrison County. The Bank sent the writ to defendant J. H. Wilson, the sheriff who, at the Bank's direction, wrongfully levied the same upon a tract of 218 acres of land situated in Harrison County, owned by plaintiff Robert Ogden, who was not a party defendant in the County Court judgment, but an entire stranger thereto, and owed nothing therein. The land was levied on as the property of R. H. Ogden, defendant in the suit. The levy was prompted by the unwarranted assumption that Robert Ogden, the owner of the land, was one and the same person as R. H. Ogden, one of the defendants named in the County Court judgment and the execution writ issued thereon. Plaintiff alleged, "that said levy as made, constitutes and is an unlawful invasion and trespass upon the rights and property of this plaintiff and has subjected him to great damage, embarrassments and indignities; that such wrongful levy and unlawful trespass has cast a cloud upon plaintiff's title to said land and in addition thereto has disrupted, interfered with and prevented plaintiff from enjoying and realizing reasonable profits from the operation of a dairy, livestock farm and general farming enterprises, located upon such land, and has further caused plaintiff great loss in that plaintiff has been, and is, because of such wrongful levy and unlawful trespass as heretofore set out, prevented from harvesting, saving and acquiring certain crops and other products from said farm, that he would have otherwise harvested, saved, acquired and realized had such wrongful levy and unlawful trespass not been made, all of such wrongful levy and unlawful trespass, because of circumstances above set out, having damaged plaintiff to this date in the amount of $5,000.00."

According to allegations in the third paragraph of his petition, after plaintiff was informed of said illegal levy, he informed the Bank of his ownership of the land and requested a release of the levy, which request was denied, and which was wilful, intentional and wrongful and caused plaintiff to suffer injury and damages in the further sum of $5,000.

In the fourth paragraph of the same pleading, allegations were made that after levy of the execution the Bank caused to be published in the Marshall News Messenger, a newspaper published in Marshall, Harrison County, an advertisement under the heading, "Legal Notice, sheriff's sale Real Estate", that plaintiff's said land would on a day fixed therein be sold at public vendue for cash, with the further statement that the land had been levied on as the property of R. H. Ogden, defendant in the execution; with further allegations that such publication was a slander of plaintiff's title by the Bank, made with wilful and malicious intent on the part of the Bank; by reason of all which plaintiff has suffered great loss of credit and injury to his reputation as a business man, in the further sum of $5,000.

That petition concludes as follows: "Wherefore, premises considered, plaintiff prays that defendants and each of them, be cited to appear and answer herein, that upon final hearing hereof, he have judgment for damages as alleged, and for removal of the cloud upon the title to plaintiff's land, for costs of suit, and for such other and further relief, special and general, in law and in equity, to which he may show himself justly entitled."

The foregoing petition was filed July 18th, 1939. Theretofore, on July 15th, 1939, plaintiff had prepared a separate verified application for a temporary writ of injunction to restrain the sale of the land under the levy so made, as advertised, based on allegations of substantially the same facts as in the foregoing petition, with a further prayer that upon final hearing of that application the temporary writ of injunction be made final and permanent. That application was also filed on July 18th, 1939.

Upon the petition for injunction, the district judge endorsed his fiat directing the clerk of the court to issue the temporary writ of injunction prayed for and notice to the defendants to appear before him on July 22nd, 1939, and show cause why the temporary injunction should not be made perpetual and permanent.

On the day so appointed there was a further hearing, at which plaintiff appeared, but both defendants failed to appear. Upon that hearing the court made the following order:

"It is therefore ordered, adjudged and decreed that the defendant, The Morris Plan Bank of Fort Worth, and the defendant, J. H. Wilson and each of them, be and they are hereby permanently and perpetually enjoined from, and that each of them shall desist from, selling and/or causing to be sold and/or offering for sale the land described in plaintiff's verified application for temporary injunction filed herein on July 18th, 1939, on the first day of August, 1939, or at any time and further from interfering with, molesting or harassing plaintiff's possession, use and occupancy of said land in any manner.

"It is further ordered, adjudged and decreed by the court that plaintiff do have and recover of and from the defendants all costs in the behalf expended for all of which let writ of injunction and writ of execution issue."

On August 25th, 1939, the defendant Bank filed its plea of privilege in statutory form to be sued in Tarrant County. Also a general demurrer and general denial to plaintiff's petition.

On September 7th, 1939, plaintiff filed his duly verified controverting plea of privilege, reading:

"Plaintiff would further represent to the court that on the 18th day of July, 1939, he filed herein his petition, which petition is hereby referred to and adopted as a part of this controverting plea as though fully copied herein and plaintiff alleges that the allegations of such petition are true and correct.

"Said petition and allegation show and allege, and it is a fact, that the defendant, The Morris Plan Bank of Fort Worth, committed, within the meaning of Section 9 of Article 1995 of Vernon's Annotated Civil Statutes, a trespass, in Harrison County, Texas, upon plaintiff's lands and crops situated and growing in Harrison County, Texas.

"Plaintiff further says that this Court has venue of this cause and of the defendant, The Morris Plan Bank of Fort Worth, within the meaning and under the terms of Article 1995, R.C.S. 1925, and especially Sections 9 and 29a of said Article 1995, R.C.S. 1925 [Vernon's Ann.Civ.St. art. 1995, subds. 9, 29a]."

On September 23rd, 1939, the plea of privilege and plaintiff's controverting plea in answer thereto came on for hearing. At that hearing evidence was introduced, and at its conclusion judgment was rendered overruling the Bank's plea of privilege, to which it excepted and gave notice of appeal, in accordance with statutory requirements.

The evidence introduced showed without dispute the following facts. The writ of execution was levied by D. F. Bedell, deputy sheriff, on May 29th, 1939, and not by defendant, Sheriff Wilson. It was only an office levy. Plaintiff was not disturbed, nor was his use and occupancy interfered with in any respect. Plaintiff was the owner of the 218-acre tract levied on as the property of R. H. Ogden, upon instruction from the Bank. He was not a party to that judgment and did not owe it. When plaintiff was informed of the levy he protested to the Bank that he was not the R. H. Ogden, defendant in the writ. Thereupon the Bank promised to investigate the matter and release the levy if the facts were as plaintiff represented. Thereafter, on July 12th, Mr. John M. Scott, the duly authorized attorney and agent of the Bank, wrote attorneys of record for plaintiff an offer to release the levy or do anything necessary to correct the mistake. He made the same offer to plaintiff himself. In the absence of any response to the offers, on July 22nd, 1939, as attorney in fact for the Bank, he filed in the Deed Records of Harrison County an instrument in writing, duly acknowledged, vacating and cancelling the levy of the writ on the land in controversy and disclaiming any interest in it by reason of the levy. On August 9th he, as such attorney, wrote a letter to attorneys for plaintiff in the case and offered on the part of the Bank to execute to plaintif...