Riverside Lumber Co. v. Lee
| Decision Date | 17 May 1894 |
| Citation | 27 S.W. 161 |
| Parties | RIVERSIDE LUMBER CO. v. LEE. |
| Court | Texas Court of Appeals |
Appeal from district court, Trinity county; J. M. Smither, Judge.
Action by J. B. Lee against the Riverside Lumber Company on account. Judgment for plaintiff. Defendant appeals. Reversed.
Adams & Adams and H. L. Robb, for appellant. G. C. Clegg, for appellee.
On Motion to Dismiss.
The motion to dismiss the appeal in this case for the want of a sufficient bond is well taken, but the appellants will be allowed 15 days in which to file a sufficient bond. The bond tendered by them in reply to the motion is insufficient, because B. W. Bowland, one of the sureties thereon, is a surety on defendants' replevy bond, and judgment was rendered against him as such, and for the further reason that evidence of the solvency of the sureties at the time of the presentation of the bond should be furnished to this court. The court will not look to the approval of the clerk of the court below of the same sureties, made months ago. The reply of appellants, to the motion to dismiss, that the judgment of the court will be final, and that the condition of the bond to perform the judgment of this court alone is sufficient, is not correct, because the plea in reconvention is sufficient in amount to give jurisdiction to the supreme court. However, we do not mean to indicate that such condition would be sufficient.
On the Merits.
(June 7, 1894.)
Appellee sued appellants for the recovery of an alleged indebtedness of $640. He also sued out and levied upon property of appellants an attachment. The suit was upon an itemized account, verified by affidavit of plaintiff's agent. The defendants were partners in trade, doing business under the name of the Riverside Lumber Company, and were engaged in cutting, sawing, and selling lumber. They excepted to plaintiff's petition by general demurrer, and excepted also to the affidavit for the attachment, and further answered by general denial, and special denial as to several items of plaintiff's account; and they pleaded in reconvention damages in the sum of $700, for the alleged wrongful levy of the attachment upon their property. The cause was tried by the judge of the court, without a jury, and judgment was rendered for the plaintiff, for his debt, less a credit allowed by him of something under a hundred dollars, and for the foreclosure of his attachment lien. The petition averred that the defendants were indebted for the goods, wares, merchandise, money, and checks specified in the account attached to, and made part of, the petition, "and sold by plaintiff to defendants at their special instance and request." The checks were given by defendants to their employés, and by the latter were traded to plaintiff for goods or money; and several of the items in the account, charged as goods "sold and delivered to the defendant company," were goods sold to one of the defendants for his individual use, while other of such items were for goods which had been sold and delivered to third parti...
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