Rogers v. Irwin

• Decision Date: 03 May 1933
• Docket Number: No. 1435-6078.,1435-6078.
• Citation: 60 S.W.2d 192
• Parties: ROGERS et al. v. IRWIN.
• Court: Texas Supreme Court

60 S.W.2d 192

ROGERS et al. v. IRWIN.

No. 1435-6078.

Commission of Appeals of Texas, Section B.

May 3, 1933.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by V. B. Rogers and another, doing business as the Auto Finance Company, against E. M. Rabon, wherein plaintiffs filed affidavit for writ of sequestration, after which defendant executed his replevy bond with D. L. Irwin and another as sureties. Judgment of the district court for plaintiffs, on error proceedings by the named surety, was reversed by the Court of Civil Appeals [40 S.W.(2d) 871] as to both sureties, and plaintiffs bring error.

Judgment of the Court of Civil Appeals reversed, and judgment of district court affirmed.

See, also, 34 S.W.(2d) 672.

Spell, Naman & Howell and Harold J. Stafford, all of Waco, for plaintiffs in error.

Austin S. Dodd and Niblo & Dodd, all of Dallas, for defendant in error.

SHORT, Presiding Judge.

The following introductory statement of this case is made by the plaintiffs in error in their application for the writ of error:

"This is an action brought in the trial court by the plaintiffs in error V. B. Rogers and W. Earl Harrison, doing business as the Auto Finance Company against E. M. Rabon to recover the balance due on a promissory note and to foreclose a mortgage on a Ford car given to secure same. The car was sequestrated by the plaintiffs in error whereupon the defendant filed a replevy bond with D. L. Irwin and H. H. Tompkins as sureties. The trial court rendered judgment against Rabon for the amount of the debt and for foreclosure of the mortgage and having found the value of the property replevied to be greater than the debt rendered judgment against the principal and sureties on the replevy bond for the value of the car to the extent of the debt.

"D. L. Irwin, alone, sought by petition in error to reform the judgment of the trial court against the sureties on the replevy bond and the Court of Civil Appeals reversed and remanded the judgment of the trial court against said sureties, D. L. Irwin and H. H. Tompkins. 40 S.W.(2d) 871."

The Supreme Court granted the application in this case, because of the conflicts alleged by the holding of the Court of Civil Appeals, upon a question of law, and that of the Supreme Court in Southern Surety Company et al. v. Adams, 119 Tex. 489, 34 S.W.(2d) 789. The second assignment of error reads as follows: "The court erred in reversing the judgment of the trial court as to the defendant in error, D. L. Irwin, and in finding in connection therewith, that "the trial court foreclosed the mortgage lien not only upon the automobile, but also upon "all equipment" and found the value of the "automobile and all equipment" as a whole, and did not find the value of the automobile which had been replevied.'"

The plaintiffs in error submit the following propositions under the above assignment of error:

"The sequestration bond recited that `one Ford Cabriolet model, motor No. 2131192,' was sequestrated and the replevy bond recited that the same car using the same terms of description was replevied. The judgment of the Court found that the property replevied on the date of its replevy was of the value of $650.00 and rendered judgment against the obligors on the replevy bond in the amount of $648.73, the limit of the defendant's debt. The Court of Civil Appeals erred in holding that the trial court did not find the value of the property replevied and in reversing and remanding the judgment of the trial court as against the sureties, D. L. Irwin and H. H. Tompkins.

"Where the replevy bond showed that only one article of property, being one Ford car, was replevied, and where the judgment, the recitations of which constituted the only record of the evidence introduced on the trial, granted a foreclosure against the Ford car and all equipment and further recited that the above described property was replevied by the defendant and the court found the value of the property on the date of its replevy to be $650.00, in the absence of any showing by the plaintiff in error in the Court of Civil Appeals that the said description, one Ford car and all equipment, included equipment separate and apart from the Ford car, not attached to it, and having an intrinsic value of its own and not a value as a part of the complete Ford car, was a sufficient finding of the value of the property replevied to support the judgment of the trial court against the surety D. L. Irwin and his co-surety, H. H. Tompkins."

We sustain both of these propositions.

There being no statement of facts, every intendment of fact will be presumed to be in favor of the judgment rendered, and every recitation in the judgment will be construed most favorably, so as to sustain the judgment. The plaintiffs in error instituted this suit against E. M. Rabon to recover the balance due on a promissory note, and to foreclose a mortgage on one Ford car, together with a spare tire and tube and all equipment given to secure said note. They sequestrated the Ford car, described as "one Ford car Cabriolet model, motor No. A-2131192." This car was replevied by Rabon, with the defendants in error here, D. L. Irwin and H. H. Tompkins, as his sureties.

On the trial of the case the plaintiffs in error were awarded a judgment in the sum of $648.73 on the promissory note, with a foreclosure of his chattel mortgage on "one Ford car model, motor No. A-2131192 and all equipment." The judgment, among other things, provides:

"And it further appearing to the Court that said above described property was replevied by the defendant, who on the 15th day of February, 1930, executed his replevy bond therefor in the sum of One Thousand ($1,000.00) Dollars with H. H. Tompkins and D. L. Irwin as sureties, and it appearing from the evidence that said property was on said date of the value of Six Hundred Fifty ($650.00) Dollars:

"It is therefore further ordered, adjudged and decreed that the said plaintiffs, V. B. Rogers and W. Earl Harrison, doing business as a co-partnership under the name of Auto Finance Company, have and recover of the defendant, E. M. Rabon, and H. H. Tompkins and D. L. Irwin, the sureties on his replevy bond, the sum of Six Hundred Forty-eight ($648.73) and 73/100 Dollars, for which they may have their execution."

The Court of Civil Appeals reversed the judgment of the trial court, holding, among other things as a reason therefor, that there was no finding as to the value as to the equipment of the Ford car replevied, and remanded the case against the defendants in error, D. L. Irwin and H. H. Tompkins, but affirmed the case as to E. M. Rabon. While the petition of the plaintiffs in error declared that the note sued on was secured by a mortgage on "one Ford Cabriolet model, motor No. A-2131192, together with spare tire and tube and all equipment," the affidavit for the writ of sequestered property described the property as "one new Ford Cabriolet model, motor No. A-2131192." The replevy bond executed by Rabon, with Tompkins and Irwin as sureties, described the property replevied as "one new Ford Cabriolet model, motor No. A-2131192 of the alleged value of $500.00." The judgment rendered against Rabon was for $648.73, with interest from the date of the judgment at the rate of 10 per cent....