Schulte v. Republic Supply Co.

Citation297 S.W. 667
Decision Date17 May 1927
Docket Number(No. 8849.)
PartiesSCHULTE et al. v. REPUBLIC SUPPLY CO.<SMALL><SUP>*</SUP></SMALL>
CourtCourt of Appeals of Texas

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Action by Paul Schulte and another against the Republic Supply Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Boyles, Brown & Scott, Stevens & Stevens, and C. F. Stevens, all of Houston, for appellants.

Jno. G. Logue, Richard Burns, and Andrews, Streetman, Logue & Mobley, all of Houston, for appellee.

GRAVES, J.

This suit was brought by Paul Schulte individually and E. L. McDonald, as receiver of the Monarch Oil Syndicate No. 1, against the Republic Supply Company, to recover damages for an alleged unlawful seizure and conversion, under a writ of attachment sued out at the instance of the supply company against J. W. Gillespie, of certain oil well machinery, referred to as "equipment," sold by it to Gillespie, which was then being used by Schulte in drilling an oil well for the syndicate on its lease in the Markham field, in Matagorda county.

The cause was tried before the court without a jury, and resulted in a judgment in favor of the defendant. There were no findings of fact or conclusions of law filed in the trial court.

The rule on appeal in such instance is:

"Every presumption not inconsistent with the record will be indulged in favor of the judgment, and any doubts as to the facts raised by the evidence and any view of the law which the trial court could have applied under the pleadings and evidence in the case will be resolved in support of the judgment." Byers v. Thacker, 42 Tex. Civ. App. 492, 94 S. W. 138; Campbell v. Teeple (Tex. Civ. App.) 273 S. W. 304; Cisco & N. E. R. Co. v. Texas Pipe Line Co. (Tex. Civ. App.) 240 S. W. 990; Diltz v. Dodson (Tex. Civ. App.) 207 S. W. 356; First State Bank of Amarillo v. Jones (Tex. Civ. App.) 171 S. W. 1057; Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 690; King v. Pond, (Tex. Civ. App.) 283 S. W. 607; Robertson v. Lee (Tex. Civ. App.) 230 S. W. 730.

The reaches of the cause here will be measured accordingly.

Schulte was drilling the well for the oil syndicate under a contract between them, and for that purpose rented, for a period not definitely appearing, at $800 per month, a drilling rig from J. W. Gillespie, which included the "equipment" in question — that is, an A. W. P. Co. swivel, a 45 H. P. Rep. Spec. boiler, a Gardner boiler pump, and other inconsequential appliances; this rental contract merely gave Schulte the right to use the rig in drilling the well so long as he paid Gillespie, its owner, $800 per month for the privilege; the attachment writ, issued by the district court of Harris county against J. W. Gillespie alone, was delivered to Frank Carr, as sheriff of Matagorda county, he being also at that particular time receiver for the Monarch Syndicate, and, according to the two officers themselves, was levied by him as such, acting through his deputy, Oscar Barber, substantially in this way. The sheriff testified:

"I have never at any time on any occasion told Mr. Schulte that I would have to shut him down out there on that rig. * * * I never at any time told him before or after this writ of attachment was placed in my hands, that I was going to have to shut him down out there. * * * I never did instruct my deputy, Mr. Barber, to close down the operations on this rig. I never did tell Mr. Schulte, or my successor receiver, Mr. McDonald, or Mr. Cahill, or any one connected with that operation out there, that they couldn't use this machinery, or that they had to shut down that operation. As to what instructions did I give these watchmen about the property, these watchmen were put there on some reports that might have been true and might not have as to there might be some damage done to that property, and there was no instruction given them other than to go there and protect the property. I did not instruct them not to let Mr. Schulte or the crew that was working there not to use this property. Reports had come to me that the property there might be damaged. And acting on those reports, I sent the watchmen out there. I sent them out there simply to look after the property and see that it was not moved away, and for absolutely nothing else in the world. No, sir; I gave no instructions to the watchmen to prevent the use of the machinery; absolutely nothing of the kind. * * *

"The only thing I did was to instruct my deputy when he went there to make a list of the property as pointed out by the representative of the Republic Supply Company, and to put a guard over them day and night to see that nothing was taken away. I did not instruct the guard that I placed there not to let any one use the property; no instructions of that kind were given to anybody. There was nothing to prevent me from using it had I wanted to go ahead and drill the well. I didn't tell Mr. Schulte not to use it. I wouldn't have stopped the use of it if any one had thought to use it. I merely had a watchman go down there, simply to see that these properties that were levied on were not removed from the premises. Yes, sir; I merely felt responsible for the custody of them. I never did disconnect anything. I didn't turn any of that machinery over to the Republic Supply Company."

The deputy verified these statements as follows:

"You have asked me to tell the court just what I did on that occasion in reference to making the levy of the attachment. Well, this gentleman over there (pointing), Mr. McCullough, went with me that afternoon. I believe we waited around here most of the day; in fact, it was rather late that afternoon when we went out; and he went with me to point out the stuff that was mentioned in the indemnity bond. We went out there and he pointed it out; that's just about all there was to it. Mr. Cahill probably was there, and some other man, and we made it known to them what we were there for and made the attachment. That's about all. I don't recall that we had any special conversation with Mr. Cahill, nothing relative to this attachment, I don't think. I did not tell Mr. Cahill that I had come out there to shut him down. I did not tell Mr. Cahill that he would have to shut down. I didn't have any conversation with him at all about his shutting down; there was no occasion for it, because I had no instructions to that effect. I simply explained to him that I had this attachment and the particular property that I was levying on. As to whether or not I told him what particular pieces of machinery I was levying on, it was all pointed out. I just went around with this indemnity bond and made a lead pencil...

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4 cases
  • Wingart v. Baxter, 9388.
    • United States
    • Court of Appeals of Texas
    • January 28, 1930
    ...National Grand Lodge, Loyal Friends of America Benevolent Ass'n, v. Wilson (Tex. Civ. App.) 6 S.W.(2d) 206; Schulte v. Republic Supply Co. (Tex. Civ. App.) 297 S. W. 667; Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 688; Moore v. Porter (Tex. Civ. App.) 281 S. W. 232; Austi......
  • Shepherd v. Woodson Lumber Co., 1404.
    • United States
    • Court of Appeals of Texas
    • June 29, 1933
    ...690, pars. 2 and 3, and authorities there cited; Smith v. Patterson (Tex. Civ. App.) 294 S. W. 984, 986, par. 3; Schulte v. Republic Supply Co. (Tex. Civ. App.) 297 S. W. 667, par. 1; Wingart v. Baxter (Tex. Civ. App.) 30 S.W.(2d) 522, 526, par. 5, 531, par. 10; Brotherhood of Railroad Trai......
  • Bondies v. Glenn, 1815.
    • United States
    • Court of Appeals of Texas
    • June 24, 1938
    ...a physical seizure of the property and consequent disturbance of the owner's possession. 5 Tex.Jur. 270, sec. 109; Schulte v. Republic Supply Co., Tex.Civ.App., 297 S. W. 667; Low v. Ne Smith, Tex.Civ.App., 77 S.W. 32. Plaintiffs' petition, in effect, negatived the existence of any injury c......
  • Mutual Inv. Corporation v. Hays, 1436-6080.
    • United States
    • Supreme Court of Texas
    • April 19, 1933
    ...it to render judgment in the manner and form as rendered. Cabell v. Floyd, 21 Tex. Civ. App. 135, 50 S. W. 478; Schulte et al. v. Republic Sup. Co. (Tex. Civ. App.) 297 S. W. 667; Griffith v. Reagan (Tex. Civ. App.) 114 S. W. 1167; Sutherland v. Cabiness (Tex. Civ. App.) 146 S. W. The trial......

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