Ryan v. Goldfrank, Frank & Co.

• Decision Date: 19 January 1883
• Docket Number: Case No. 1476.
• Citation: 58 Tex. 356
• Court: Texas Supreme Court
• Parties: THOMAS RYAN v. GOLDFRANK, FRANK & CO.

58 Tex. 356

THOMAS RYAN

v.GOLDFRANK, FRANK & CO.

Case No. 1476.

Supreme Court of Texas.

Jan. 19, 1883.

APPEAL from Webb. Tried below before the Hon. John C. Russell??

The opinion states the case.

McLane & Atlee, for appellants.

Tarleton & Boone, W. Showalter and Mason & Davidson, for appellees.

I. “Whenever any sheriff, or other lawful officer, shall levy a writ of execution, sequestration, attachment, or other like writ, upon any personal property, and such property, or any part thereof, shall be claimed by any person who is not a party to such writ, such person, or his agent or attorney, may make oath in writing, before any officer authorized to administer oaths, that such claim is made in good faith, and present such oath in writing to the officer who made such levy.” R. S., art. 4822. “He shall also execute and deliver to the officer who made such levy his bond, with two or more sureties, etc., payable to the plaintiff in such writ, for an amount equal to double the value of the property so claimed, to be assessed by such officer.” R. S., art. 4823. “It shall be the duty of such officer, receiving such oath and bond, to deliver the property so claimed to the person so claiming it.” R. S., art. 4825.

II. The trial of the right of property being a statutory remedy and a departure from the common law, therefore all the requirements of the statutes must be complied with by the claimant to entitle him to the remedy. “A claimant of property which has been levied upon as the property of another cannot assert his title to it by simple unsworn proceeding. He must proceed according to the statutes, making oath in writing to his claim of the property, and by executing bond as prescribed in the article.” Carter v. Carter, 36 Tex., 693.

III. Appellant's first assignment of errors does not specifically point out the alleged error complained of, and under the rules of this court should not be considered. Rules 24 and 26 of Supreme Court; R. S., art. 1037; 52 Tex., 276;54 Tex., 285; Id., 647.

IV. The oath of claimant that his claim is made in good faith, and the delivery of the same to the sheriff, is a requisite proceeding under the statute; and a failure to make and deliver the affidavit prior to or contemporaneously with the delivery of the bond to the sheriff is a failure to comply with the requirements of the statute, and is therefore cause for the dismissal of the proceedings.

WEST, ASSOCIATE JUSTICE.

The appellees brought suit in the district court of Webb county against one John Bruin to recover a monied judgment, and on the 31st of October, 1881, sued out a writ of attachment, and had the same levied on certain personal property supposed to belong to the defendant, but which was found in the possession of appellant, who claimed to be the assignee of the defendant. In that capacity he set up title in himself to the attached property. Neither the writ, nor the sheriff's return, both of which should always constitute a part of the record in cases of this character, are to be found in the transcript.

It appears, however, that a considerable period of time elapsed between its issuance and its levy. On December 16, 1881, the property was seized. It appears from the recitals in the claimant's bond, which was on that day approved, that the appellant at the same time tendered him his written oath that his claim was made in good faith. The bond being executed in conformity with the statute, the sheriff delivered the property to him. On the 28th day of January, 1882, in time for the February term of the district court, the sheriff returned the bond and oath to the clerk of the court, who on that day filed them. The record shows that the paper supposed to contain the oath, and delivered to the clerk, had, on the 16th day of December, 1881, either not been sworn to at all, or if actually sworn to, was wanting in the jurat of the officer, or the signature of the claimant, or possibly both. It does not appear very clearly what was the precise defect, but it may be inferred from the record that the officer, by some inadvertence on his part, failed to attach to the oath his jurat in both December and January, though the paper was before him at both dates in...