Shapiro v. Sampson Bros. & Cooper, Inc.

• Decision Date: 18 March 1960
• Docket Number: No. 3496,3496
• Citation: Shapiro v. Sampson Bros. & Cooper, Inc., 334 S.W.2d 200 (Tex. Ct. App. 1960)
• Parties: I. B. SHAPIRO et ux., Appellants, v. SAMPSON BROTHERS & COOPER, INC., Appellee.
• Court: Texas Civil Court of Appeals

Page 200

334 S.W.2d 200

I. B. SHAPIRO et ux., Appellants, v.SAMPSON BROTHERS & COOPER, INC., Appellee.

No. 3496.

Court of Civil Appeals of Texas, Eastland.

March 18, 1960.

Robert R. Duvall, C. C. Devine, Houston, for appellants.

Dyche, Wheat & Thornton, Houston, Mobley & Emerson, Houston, for appellee.

COLLINGS, Justice.

On February 13, 1957, Sampson Brothers and Cooper, Inc., brought suit against A. J. Cooper to recover possession of a Ford truck and other equipment, tools and apparatus used in plaintiff's fumigation business, or in the alternative, to recover the value of such property.In a sworn application for writ of sequestration, Murry Lacy, the president of plaintiff corporation, alleged that Cooper was in possession of the described property and alleged the value of each item thereof, which was in the total amount of $3,660.On February 27, 1959, the defendant, A. J. Cooper, and I. B. Shapiro and Mrs. I. B. Sharpiro, as sureties, filed a replevy bond in the sum of $7,320, based on the values alleged in plaintiff's petition and application for writ of sequestration.On March 9, 1959, more than two years after the filing of the replevy bond, plaintiff filed its third amended original petition, alleging the value of the truck and certain other items of the described property to be in an amount in excess of that alleged in the original petition and that the total value of such property was $5,675.The case went to trial before a jury on March 17, 1959, without notice to the sureties of the changed allegations of value and without any opportunity on the part of the sureties to participate in the trial.The evidnce introduced by plaintiff showed a greater value of the property than that alleged in plaintiff's original petition and the jury found that the total value of the property on the date of the filing of the replevy bond was $4,310, and that the property was on March 17, 1959, the date of the trial, of the total combined value of $1,670.It was further found by the jury that the value of the hire of the detained property from the date of replevy to the date of the trial was $3,000.Based upon the verdict, judgment was rendered against Cooper and against the sureties on his replevy bond for $7,310 with the provision that in the event all or any part of such property was returned to plaintiff, a credit should be allowed against the amount of the judgment for the value of each item returned as of March 17, 1959.The sureties on the replevy bond alone have brought this appeal and are not joined therein by the defendant, A. J. Cooper.

Appellants urge that the record shows error in that (1) the judgment against them for the value of the several items of property is materially greater than the value alleged in appellee's original petition and application for a writ of sequestration; (2) that although appellee before judgment, but about two years after the filing of its original petition and application for writ of sequestration, filed a third amended original petition and alleged values therein which would support the judgment, that appellee failed to comply with the requirements of Rule 700,Texas Rules of Civil Procedure, which provides for amendments correcting clerical errors in the affidavit, bond, and writ of sequestration only upon application in writing to the judge of the court and after notice to appellant.Appellants' points urging the above contentions are overruled.

Rule 696(c), T.R.C.P., requires that the affidavit for sequestration of property describe the property with certainty, giving the value of each article of the property.It is held, however, that the statement of value in the affidavit serves only as a predicate for the amount of the plaintiff's bond and is not evidence of the value of the property.It is also held that 'the statement of value does not limit the recovery in case of replevy by the defendant, and does not preclude a judgment on the replevy bond for a greater amount.'37-B Tex.Jur. 618, 619;Watts v. Overstreet, 78 Tex. 571, 14 S.W. 704;Rogers v. Irwin, Tex.Com.App., 60 S.W.2d 192;Brunson v. Dawson State Bank, Tex.Civ.App., 175 S.W. 438;Wolforth v. A. J. Deer Co., Tex.Civ.App., 293 S.W. 590;Tripplett v. Hendricks, Tex.Civ.App., ...