Morris v. Anderson

• Decision Date: 25 April 1912
• Citation: Morris v. Anderson, 152 S.W. 677 (Tex. App. 1912)
• Parties: MORRIS et al. v. ANDERSON et al.
• Court: Texas Court of Appeals

152 S.W. 677

MORRIS et al. v. ANDERSON et al.

Court of Civil Appeals of Texas. Amarillo.

April 25, 1912.

Rehearing Granted December 7, 1912.

Second Motion for Rehearing Dismissed January 4, 1913.

Error from Potter County Court; W. M. Jeter, Judge.

Suit by Lorena Morris, by next friend, J. S. Morris, against C. E. Anderson and others. Judgment for defendant Lois Morris was rendered against plaintiff and the sureties on her bond, and they brought error. Heard on rehearing. Reformed and affirmed.

See, also, 147 S. W. 367.

Crudgington, Works & Umphres, of Amarillo, for plaintiffs in error. Barrett & Jones, of Amarillo, for defendants in error.

HUFF, C. J.

Plaintiff in error, Lorena Morris, by her next friend, J. S. Morris, brought suit in the county court of Potter county against C. E. and Mrs C. E. Anderson, and C. S. and Lois Morris, for a certain piano, and at the same time made affidavit and executed bond for sequestration, which bond was signed by Lorena Morris, principal, by her next friend, J. S. Morris, and J. A. McKillopp and John Beverly, sureties on said bond. The plaintiff in error filed her petition December 19, 1910. The affidavit and bond for sequestration were filed December 21, 1910, upon which a writ of sequestration was issued and levied upon the piano sued for. The sheriff, by virtue of the writ, took possession of same on the 23d day of December, 1910. The defendants failed to replevin, and plaintiff, under the statute, executed a replevin bond, conditioned as required by the statute, on the 5th day of January, 1911, which bond was approved by the sheriff executing the writ and returned to and filed in the county court with the papers in the cause. On the 1st day of February, 1911, plaintiff in error, by her attorney, made a motion to dismiss the cause, but at that time the papers were in the hands of Messrs. Barrett & Jones, attorneys for defendant in error. Said attorneys were sent for, and, when informed of plaintiff's motion, stated that service had not been had a sufficient length of time to require an answer at that term of court and suggested that plaintiff had executed a replevin bond which was on file in the court and thereby came into possession of the piano and objected to a dismissal until the piano was returned to the sheriff. This the plaintiff declined to do. The trial court then stated he would not dismiss the case unless plaintiff returned the piano. C. E. Anderson and his wife disclaimed. C. S. Morris, it appears, did not answer. Lois Morris answered on the 3d day of February, 1911, and thereafter amended her answer, reconvening for actual and punitory damages. Judgment was had in the case on the 18th day of March, 1911. It is recited in the judgment entry that the case was called for trial at 2 o'clock p. m. on the 17th day of March, 1911, and at the request of plaintiff's attorney the case was set down for trial for 9 o'clock a. m., the 18th day of March, and then came on attorneys for plaintiff as well as the attorneys for defendant Lois Morris, and answered ready on her answer and reconvention, and the attorney for plaintiff then and there announced that he did not propose to appear in the case but as a friend of the court and suggested that Lois Morris did not have service on the bondsmen and objected to proceeding on the ground that the case had been dismissed by plaintiff, etc. The court rendered judgment in favor of Lois Morris for the piano against the plaintiff, as well as the sureties on the replevin bond, J. A. McKillopp and G. W. Baker, and for rent of the piano, $13, and in the alternative, if the piano was not returned, its value $225, and further rendered judgment against Lorena Morris as principal and J. A. McKillopp and John Beverly as sureties in the sum of $100, exemplary damages on the sequestration bond. At a former day of this court, this case was affirmed without a written opinion. Upon motion for rehearing, our attention has been called to the fact that exemplary damages were awarded against the sureties on the sequestration bond. This was not presented by the brief of plaintiff in error or called to our attention when the case was submitted. We therefore deem it proper to state our views on this case in writing, upon a motion for rehearing.

It can be stated generally, without citing authorities, that a plaintiff may dismiss or nonsuit his case at any time before an answer asking affirmative relief is filed by the defendant. This applies as a general rule to all cases. It is insisted there is no exception in this kind of case and that there is no authority for holding it an exception. We think the statutes under which plaintiff executed the replevin bond clearly authorized the court to render judgment against the maker thereof for the return of the property or its value and for the value of its rent. The fact that the court refused to dismiss the plaintiff is not a matter which can be said to have injured her, if the court on defendant's statutory right held the case to render a judgment on the replevin bond. A judgment for defendant either on plaintiff's petition or bond under the statutes concludes her. Midkiff v. Stephens, 9 Tex. Civ. App. 411, 29 S. W. 54. By article 4880, Sayles' Statutes, it is provided that, when the defendant within 10 days fails to replevin property, the officer having the property may deliver the same to the plaintiff upon his giving bond, payable to the defendant, in a sum not less than double its value for the forthcoming of such property, together with the fruits, hire, revenue, and rent of same to abide the decision of the court. Article 4881, "The bond provided for in the preceding article, shall be returned with the writ and in case the suit is decided against the plaintiff, final judgment shall be entered against all obligors in such bond, jointly and severally, for the property replevined and for the value of the fruits, hire, revenue or rent thereof, as the case may be, and the same rules which govern the discharge or enforcement of a judgment against the obligors in the defendant's replevin bond, as hereinbefore provided, shall be applicable to and govern the case of judgments against the obligors in the plaintiff's replevin bond." Article 4877 is one to which article 4881 refers, by which it is provided defendant may discharge the judgment by returning the property within 10 days to the officer seizing the same under the sequestration writ. Article 4878 provides that, if the property has been damaged, such officer shall judge the damage. Article 4879 provides that, if the property is not returned, execution shall...