Seedig v. First Nat. Bank

• Decision Date: 18 April 1914
• Docket Number: (No. 7958.)
• Citation: 168 S.W. 445
• Parties: SEEDIG v. FIRST NAT. BANK OF CLIFTON et al.
• Court: Texas Court of Appeals

168 S.W. 445

SEEDIG v. FIRST NAT. BANK OF CLIFTON et al.

(No. 7958.)

Court of Civil Appeals of Texas. Ft. Worth.

April 18, 1914.

Rehearing Denied May 16, 1914.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Action by Gustav Seedig against the First National Bank of Clifton and others. Judgment for defendants, and plaintiff appeals. Modified and affirmed.

Edwin W. Hander, of Waco, and J. S. Bounds, of Meridian, for appellant. James M. Robertson, of Meridian, for appellees.

CONNER, C. J.

This suit was instituted by the appellant against the First National Bank of Clifton and against J. W. Butler, its president, and G. F. Boone and W. H. Randell, the sheriff of Bosque county, for damages because of an alleged wrongful levy and sale under execution of certain personal property owned by the plaintiff and claimed by him to be exempt from execution. It was alleged that the First National Bank was in the process of liquidation, and that the defendants Butler and Boone were its liquidating agents and they were sued as such, save that it was specially charged that J. W. Butler advised and directed the levy with full knowledge at the time that the property levied upon was exempt, and the plaintiff claimed both actual and exemplary damages against the bank and Butler.

The defendants, who are now appellees, answered on September 17, 1913, after our new act on the subject of pleading went into effect. They filed a general denial, and specially denied that the property levied upon was exempt, and specially alleged that they did not levy upon and sell the property "maliciously and without probable cause."

To this the appellant answered by way of supplemental petition, alleging, among other things, that on the 2d day of December, 1912, the plaintiff on his own petition had been, by the District Court of the United States for the Western District of Texas at Waco, adjudged a bankrupt, the judgment described in the plaintiff's petition, and by virtue of which the execution in question had been levied, being listed as one of the debts from which the plaintiff desired a discharge; that the bank had been duly notified of the adjudication, and summoned to prove up its judgment against the plaintiff's estate; that on the 3d day of January, 1913, "Ed Russell, the duly appointed and qualified trustee of said bankrupt estate, set aside all of said exempt property described in plaintiff's said petition as being his exempt property and not subject to be administered as a part of the bankrupt's estate, wherefore [as the prayer is] the plaintiff says that the fact that said property is his exempt property, and not subject to sale under execution to satisfy said judgment, is, as between the plaintiff and said bank, res adjudicata, and not subject to dispute between them."

The case was tried before the court without a jury on September 17, 1913, and the court found that, of the property levied upon, property of the value of $704.60 was, in fact, exempt, as alleged by the plaintiff, and for this amount judgment was rendered against all defendants (no personal judgment being rendered against defendant Butler). The remaining part of the property was found to be nonexempt and subject to the execution in question. The court further found and adjudged in favor of the defendant bank against the plaintiff, Gustav Seedig, for the sum of $315.60, the balance due upon a note and mortgage that the defendants had set up by way of cross-action in their answer. The court filed formal conclusions of fact upon which he based his judgment.

We are of the opinion that appellant's first assignment is well taken. It appears that in rendering judgment the court allowed plaintiff interest upon the value of the exempt property found to have been converted from the date of the judgment only; whereas we think he was entitled to interest thereon from the date of the conversion of the property, to wit, from November 5, 1912, making a difference of $35.23 to which appellant is entitled. See Thompson v. Griffin, 69 Tex. 140, 6 S. W. 410; Masterson v. Goodlett, 46 Tex. 402; Hillebrant v. Brewer, 6 Tex. 51, 55 Am. Dec. 757. The error here noted, however, will not require a reversal of the judgment, but may be corrected as we will hereinafter attempt to do by its reformation.

In the second assignment appellant urges "that the court erred in not finding as against the First National Bank of Clifton that all the property was exempt for the reason that the nonexempt character of the property had become res adjudicata, as had been specially pleaded." Whatever of merit there might otherwise be in this contention, we think the present record fails to sustain it. In prescribing the duties of a trustee in cases of bankruptcy, the federal statutes, among other things, provides that he shall "set apart the bankrupt's exemptions and report the items and estimated value thereof to the court as soon as practicable after the appointment." See chapter 5, § 47, par. 11, of the Bankrupt Act (1 Fed. Stat. Anno. p. 656). It seems evident that the mere act of the trustee in setting apart exempt property has not been given the force of an adjudication. He is required to report...