Murphy v. Moseley

• Decision Date: 03 November 1928
• Docket Number: (No. 10214.)
• Parties: MURPHY et al. v. MOSELEY.
• Court: Texas Court of Appeals

Page 234

11 S.W.2d 234

MURPHY et al. v. MOSELEY.

(No. 10214.)

Court of Civil Appeals of Texas. Dallas.

November 3, 1928.

Rehearing Denied December 8, 1928.

Error from District Court, Dallas County; Claude M. McCallun, Judge.

Action of trespass to try title by Annette Moseley against Frank M. Shanklin and wife, in which a writ of sequestration was issued, and the property was thereafter replevied by defendants under a replevy bond executed by defendants with U. F. Short and M. Murphy as sureties. Judgment for plaintiff, and Mrs. Emma C. Short, independent executrix of the estate of U. F. Short, deceased, and M. Murphy bring error. Affirmed.

Clark & Clark, of Dallas, for plaintiffs in error.

K. R. Craig, of Dallas, for defendant in error.

VAUGHN, J.

The appellee, Annette Moseley, a feme sole, on the 15th day of January, 1924, filed in the court below her action of trespass to try title against one Frank M. Shanklin and his wife, Carrie M. Shanklin, as defendants, for the title to and possession of a tract of land located in the city of Dallas, Dallas county, Tex., known as 2917 Bowser avenue, comprising two tracts of land, each of said two tracts being separately described by appropriate field notes; one being designated as lot 5 in block 637 and the other as a part of block 637 of the Murphy-Bolanz official map of the city of Dallas, Tex. On the same date appellee, in conjunction with and as a part of her petition, filed her affidavit and executed bond for the issuance of a writ of sequestration, sequestrating the above-described property. The writ of sequestration was duly issued under and in accordance with said affidavit and bond on the 15th day of January, 1924, the property in said writ to be sequestrated being described as the same was described in said petition. Said writ was duly executed on the date of issuance. Said property was thereafter duly replevied by said Frank M. Shanklin and Carrie M. Shanklin on the 7th day of February, 1924, under a replevy bond executed by them with one U. F. Short, and appellant Murphy, as sureties, payable to appellee in the sum of $14,000, conditioned as follows:

"That the defendants, Frank M. and Carrie M. Shanklin, will not injure said property and that they will pay the value of the rents of the same in case they shall be commanded to do so * * * and that they will have said property, with the value of the fruits, hire or revenue thereof, forthcoming to abide the decision of the court, or will pay the value thereof, and of the fruits, hire or revenue of the same, in case they shall be commanded to do so."

As to the pleadings filed by the defendants, Shanklin and wife, in the court below, it is only necessary to state that same included a plea of not guilty and a general denial. U. F. Short, one of the sureties on the replevy bond, died pending the suit, leaving a will in which his surviving wife, Emma C. Short, was made sole devisee and named as independent executrix. On February 24, 1927, appellant Murphy made known to the court that the said U. F. Short departed this life July 24, 1925, and that Emma C. Short, wife of said decedent, was the duly appointed, qualified, and acting independent executrix of the estate of said U. F. Short, deceased. Trial before a jury was concluded April 22, 1927, and resulted in a judgment being entered in appellee's favor on the verdict rendered for the title, restitution, and possession of the tract of land sued for by appellee, together with judgment against the principals and sureties on the replevy bond executed by defendants, Shanklin and wife, for the sum of $2,217.25, being the aggregate rental value of the property so replevied from the date of replevy up to the date of the trial, as found by the jury. There being no question raised as to the correctness of said verdict, no further reference will be made thereto. This appeal is prosecuted through writ of error by Mrs. Emma C. Short, independent executrix of the estate of U. F. Short, deceased, and M. Murphy.

Before proceeding further, we will dispose of appellee's motion to strike out the several papers filed herein by plaintiffs in error, styled: (a) Additional Argument and Authorities in Support of this Appeal, filed June 15, 1928; (b) Additional Argument and Authorities, filed July 20, 1928; and (c) Additional Authorities of Plaintiffs in Error, filed October 5, 1928 — on the ground that said papers are in fact and effect amended briefs and not filed in compliance with rule 37 for this court. When this cause was submitted, attorney for plaintiff in error applied for, and obtained, permission to include additional authorities in briefs theretofore filed, but did not apply for permission to file an amended or supplemental brief. Rule 37 for this court provides:

"The brief of either party may be amended by a citation of additional authorities if filed and notice be given to counsel for the opposite party one day before the case is called. No other amendment of the brief shall be allowed except by permission and under direction of the court."

The motion to strike said briefs is well taken, except in so far as additional authorities were cited in support of the propositions raised in plaintiffs in error's original brief. Said motion is therefore sustained, and said additional briefs will not be considered, but are here stricken from the record of this cause, as same were not filed by permission and under the direction of the court, the permission granted by the court only extending to the right to file additional authorities.

Plaintiffs in error complain of the action of the court in overruling motion to quash writ of sequestration issued in this cause. Following are the grounds presented by said motion, namely: (a) That the affidavit for the writ of sequestration did not state in what county the property to be sequestrated was situated; (b) that the affidavit for the writ did not describe the real property to be sequestrated; (c) that the writ of sequestration did not describe the real property as described in the affidavit for the writ of sequestration; (d) because the affidavit was duplicitous, in that the writ was asked for on two grounds, first, for fear of injury to the property, and, second, that the...