Rodrigues v. Trevino

• Decision Date: 11 January 1880
• Docket Number: Case No. 1112.
• Parties: FELIPE RODRIGUES ET AL. v. MANUEL TREVINO.
• Court: Texas Supreme Court

54 Tex. 198

FELIPE RODRIGUES ET AL.

v.MANUEL TREVINO.

Case No. 1112.

Supreme Court of Texas.

Jan. 11, 1880.

APPEAL from Starr. Tried below before the Hon. John C. Russell.

Suit by Oliviade Leon Rodrigues, her husband, Felipe Rodrigues, and Antonio Leon de Leon, a minor, against Manuel Trevino and three others. The petition alleged in substance, that in 1871 the defendant Manuel Trevino, and his brother, since deceased, brought suit by attachment in Starr county against Manuel Leon de Leon, which was levied upon a stock of horses, cattle and sheep; that judgment was obtained by the plaintiffs in that suit and defendant appealed; that pending the appeal, at the November term of the district court, 1875, the seized property was ordered to be sold by the sheriff, and the proceeds to be held subject to the future order of the court, under which order the property was sold for $2,491.93; that on September 23, 1878, the mandate of the supreme court was filed, affirming the judgment below against Manuel Leon de Leon; that at the September term, A. D. 1878, the then plaintiff, Trevino, obtained an order against the defendant Pedro Marcelie, then sheriff, and who held the proceeds to pay over the same to him, Trevino.

That at the March term, 1879, the money not having been by him paid over, another order or judgment was obtained against Marcelie Oligio Garcia, one of his sureties, and F. O. Rench, administrator of Jacinto Olivarez, another surety, deceased, upon which, at the time of filing proceedings and motion herein appealed from, there still remained unpaid and in the hands of defendant Marcelie, $800, the balance having been paid to Trevino by the defendant Garcia, surety of Marcelie.

Appellants alleged that they were the part owners and by descent entitled to an undivided interest in the property levied upon and sold, and so of the proceeds thereof, inclusive, to the proportion of five-ninths thereof, and making Trevino, the sheriff Marcelie and his sureties all parties, asking to be allowed to establish such joint ownership; that the amount yet unpaid be paid to them, and defendant Trevino held to account to them for surplus received more than the share of De Leon therein.

The defendant Trevino demurred generally to the petition; his demurrer was sustained. The appellants excepted and appealed.M. Wygant, for appellant.

I. The court erred in sustaining the demurrer of defendant Trevino to petition. Carter v. Wallace, 2 Tex., 209;Smith v. Clopton, 4 Tex., 114, 395;Roller v. Woolbridge, 46 Tex., 485;Rogers v. Nichols, 20 Tex., 719; Thompson v. Tennen, 25 Tex. Sup., 61; Walker v. McMastin, 48 Tex., 214;Perkins v. Harris, 10 Tex., 50;Spencer v. Kennard, 12 Tex., 187;Trevino v. Stillman, 48 Tex., 566; Byerly v. Clark, 48 Tex., 352;Overton v. Blum, 50 Tex., 424;Robertson v. Guerin, 50 Tex., 323; Freeman on Judgments, 2d ed., pp. 486, 509, 511.

MOORE, CHIEF JUSTICE.

If this case was properly before the court for hearing on the demurrer when the judgment from which this appeal is presented was rendered, it should be affirmed.

If appellants were the owners of the property, or any part of it, which was seized by...