Peticolas v. Carpenter

• Citation: 53 Tex. 23
• Parties: A. B. PETICOLAS v. J. E. CARPENTER ET AL.
• Decision Date: 05 March 1880
• Court: Supreme Court of Texas

53 Tex. 23

A. B. PETICOLAS

v.J. E. CARPENTER ET AL.

Supreme Court of Texas.

Mar. 5, 1880.

APPEAL from Victoria. Tried below before the Hon. H. Clay Pleasants.

The case is sufficiently stated in the opinion.

A. B. Peticolas and Glass & Callender for appellant.

I. The court had no jurisdiction of the case between the plaintiff and intervenors, as made by the intervenors' amended pleading, nor to render personal judgment against him. (Const., art. 5, sec. 8.)

II. The amendment of the intervenors set up a new cause of action, which was barred by the statute of limitation of two years.

The cause of action against plaintiff accrued, if at all, February 3, 1877, when the proceeds of the goods were paid plaintiff by the sheriff. Amended pleas of intervenors were filed June 14, 1879. The suit, as originally made by the intervenors, was a suit to foreclose the lien of their executions against Carpenter.

An amendment setting up a new cause of action may be met by the plea of the statute of limitations. (Henderson v. Kissam, 8 Tex., 52;Williams v. Randon, 10 Tex., 74; The Governor v. Burnett, 27 Tex., 37;Wooldridge v. Hathaway, 45 Tex., 380.)

III. The lien of the intervenors' executions having been declared of no effect by the judgment of the District Court of November 20, 1876, and that judgment not having been suspended by the perfection of intervenors' appeal, and the goods having been sold under that judgment and the proceeds applied as therein ordered, the subsequent reversal of the cause by the Supreme Court, on January 21, 1879, did not revive the lien of the executions, nor vitiate and render null and void that which had been legally done prior to the reversal; nor did it have the effect to create a cause of action in favor of the intervenors against the plaintiff. Plaintiff's judgment against Carpenter was valid and entitled to satisfaction, and the order of sale was, in effect, an execution which could be, and was, satisfied out of goods of Carpenter's which were unincumbered and subject to levy. (Mosely v. Gainer, 10 Tex., 393;Castro v. Illies, 22 Tex., 479; Sherrod v. Davis, 17 Ala., 312; Estes v. Boothe, 20 Ark., 583; Camp v. Bancroft, 26 Ga., 393.)

Plaintiff is not primarily liable to pay the debt sued for by intervenors, due them by J. E. Carpenter.

The debt was primarily a debt due and owing by J. E. Carpenter to intervenors, for goods by him purchased of them after the plaintiff's debt was created and his mortgage recorded. The money realized from the sale of the goods was applied to the payment of a judgment against Carpenter, and the order of sale performed the duties of an ordinary execution. The record shows no privity of contract between plaintiff and intervenors, and no promise or agreement by plaintiff to pay their debt; nor does it show that Carpenter is insolvent. (Paschal's Dig., art. 3875.)

Lackey & Stayton, for appellees.

I. The court had jurisdiction of the cause in the first instance, and had full power to administer the property in its custody. (Const., art. 5, sec. 8.) It is but the ordinary distribution of a fund in possession of the court among creditors.

II. Peiser & Co. and Ralph Levy & Co. having caused their executions to be levied upon the property in the hands of the sheriff while he held the same under the levy made by him of the writ of sequestration sued out by the appellant, had an interest in the property which authorized them to intervene. (Eccles v. Hill, 13 Tex., 67.)

III. The amendments filed by the intervenors, A. Peiser & Co. and Ralph Levy & Co., did not set up a new cause of action, and the statute of limitation did not run against the claim of the intervenors.

IV. The intervenors did not acquire their lien by the judgment of the District Court, but by the levy of their executions; and the failure to give a supersedeas bond did not affect their lien. The reversal of the case by this court fully establishes that their liens fully attached, and that they were entitled to enough of the proceeds of sale to satisfy their judgment.

V. The executions of the intervenors being levied and still in the hands of the sheriff, and not returnable, at the time the appellant caused the sequestered property to be sold under his execution, which issued upon an erroneous judgment, the proceeds of sale, so far as necessary to pay the judgments of the intervenors, should have been paid to them. The appellant received the same in his own wrong.

VI. While the title to the sequestered property sold under appellant's execution passed to the purchaser notwithstanding the judgment under which his execution issued was afterwards reversed by this court, yet the proceeds of such sale are as completely under the control and direction of the court as was the property before the sale thereof, and especially so when the proceeds went into the hands of the person in whose favor the erroneous judgment was reversed.

GOULD, ASSOCIATE JUSTICE.

In 1876 Peticolas sued Carpenter on a promissory note, and sequestered a stock of goods on which he held a chattel mortgage to secure his note. Subsequently, A. Peiser & Co. and Ralph Levy, having each obtained judgments in a Justice's Court against Carpenter, caused their executions to be levied on the same goods, and intervened in the suit of Peticolas v. Carpenter, denying the validity of the mortgage and asking the satisfaction of their judgments by the enforcement of the lien arising from the levy of their executions. The District Court, however, by judgment rendered November 20, 1876, upheld the mortgage, directing the proceeds of the sequestered goods to be applied first to the satisfaction thereof, any surplus remaining thereafter to be applied to the demands of intervenors.

Whilst that judgment was in force, not superseded or appealed from, the goods sequestered were sold under an order of sale regularly issued in the case of Peticolas v. Carpenter, and the proceeds were paid over to Peticolas, no surplus remaining for intervenors. November 4, 1878, intervenors prosecuted a writ of error to this court, which resulted in a reversal of the judgment, the mortgage being held, as to them, invalid. (50 Tex., 638.) In June, 1879, intervenors filed amended pleas of intervention, setting up these facts, and seeking to recover of Peticolas the amounts of their respectiv?? judgments and costs. The facts were agreed on and the case submitted to the court, which gave judgment that Peticolas, within ten days after the rising of the court, pay to the sheriff, for the intervenors, out of the proceeds of the sale received...