Smith v. Holland

• Decision Date: 20 May 1891
• Citation: 16 S.W. 424
• Parties: SMITH v. HOLLAND.
• Court: Texas Court of Appeals

16 S.W. 424

SMITH v. HOLLAND.

Court of Appeals of Texas.

May 20, 1891.

Appeal from Brown county court.

Scott, Jenkins & McCartney, for appellant. Charles Rogan and Thomas Mayes, for appellee.

DAVIDSON, J.

This suit was originated in the county court of Brown county. On January 1, 1889, appellee, who was plaintiff below, filed his second amended original petition, in which he alleges that appellant was justice of the peace of precinct No. 4 of Brown county from the 17th day of April, 1886, to May 25, 1886; that during said time one M. Henderson was the qualified constable of the same precinct. He alleges, also, that on April 17, 1886, A. M. Giddens sued him in said justice court of precinct No. 4, and caused a writ of sequestration to be issued and levied upon about 20 head of cattle, the property of appellee; that appellee replevied said cattle by executing a replevin bond, which was accepted by said Henderson. On May 15, 1886, the cause came on for trial, and Giddens recovered a judgment against appellee for possession of the cattle, and, in the event the cattle were not delivered in accordance with the requirements of said judgment, Giddens was to recover the sum of $100. From this judgment an appeal was taken by appellee to the county court. An appeal-bond was taken and approved by appellant as justice of the precinct on May 15, 1886. This appeal-bond was insufficient in amount, and on July 15, 1886, was supplanted by another bond in the county court. On May 22d, seven days after the justice court adjourned, appellee issued a "writ of restitution" to M. Henderson, the constable, who took possession of the cattle, and returned same to Giddens. Appellee alleges that he was deprived of the "product and possession" of said cattle from May 22 to October 15, 1886, to the value of $350. It is further alleged that appellee was deprived of the care, management, and control of said cattle, and that they were neglected, and not properly cared for, by reason of which they were damaged in the sum of $50. It is also alleged that 13 head of these cattle had deteriorated in value from $12 per head to $7, and that appellee had been deprived of an opportunity to sell the same. He still further alleges that appellant, as justice of the peace, did wrongfully and maliciously, and without probable cause, issue the said "writ of restitution, and cause said Henderson, the constable, on the 25th day of May, 1886, to levy upon and seize said cattle, and take them from his possession, to his great injury, to-wit, in the sum of five hundred dollars." Appellant denied all the allegations contained in appellee's petition. He further denied that appellee was in the possession, or entitled to the possession, of the cattle, and he denied that the "writ of restitution" was issued maliciously, with intent to injure appellee, or was issued without probable cause. The appellant alleged that, in both the justice and county court, Giddens obtained a judgment against appellee for actual and exemplary damages for the unlawful and malicious seizure and detention of the cattle in question from him, the said Giddens, and that said judgment was final as to appellee's right of possession of said cattle during all the time from May till October 15, 1886, and that the right of possession was in Giddens during that time. Appellant further pleaded that he issued the writ of restitution in his judicial capacity, and in the exercise of his discretion as a judicial officer, in a cause in which he had exclusive jurisdiction. The evidence shows that the replevy bond was not in accordance with the terms of the statute, and therefore was not a valid replevy bond. Haile v. Oliver, 52 Tex. 446. It was a good bond for the forthcoming of the cattle, and could have been enforced at the suit of the officer taking same. The evidence shows that the appellee had leased the cattle to one McWhorter. The lease contract was terminated October 15, 1886, and he agreed to the lease from McWhorter to Giddens. This was an admitted fact. This state of the case put the right of possession of the cattle in Giddens, and the facts also sufficiently show that appellee, without authority, took possession of the cattle, and out of this seizure of the cattle grew the suit between himself and Giddens, in which suit Giddens recovered his aforesaid judgments. These judgments established the fact that appellee was a trespasser in so far as his caption of the cattle from Giddens was concerned, and it established the further fact that Giddens was entitled to the cattle until October 15, 1886. Upon this phase of the case the appellant asked the court to charge the jury that, if they found that the right of possession of the cattle was not in plaintiff, but that such right of possession was in Giddens, then they would not find for appellee for the value of the use of the cattle during the time mentioned, from May 25 to October 15, 1886. This charge was refused. In this ruling the court erred. The charge should have been given.

Again, the appellant requested special instructions to the effect that, if at the time of the issuance of the writ of restitution complained of, and which formed the basis of appellee's action, the cattle levied on thereunder were not the property of appellee, the jury would find for the appellant. He further requested that a charge be given to the effect that if subsequent to the institution of the suit of Giddens v. Holland, (appellee,) and before the levy of the writ of restitution, the appellee had sold the cattle to his son Marion Holland, and given him the right of possession of the same, then the appellee would not be entitled to the value of the use of the cattle while the right of such possession remained in Marion Holland. All of the charges were refused. Giddens was entitled to the possession of the cattle, by virtue of his lease contract. The two judgments against the appellee established that right. The issue in the sequestration suit between Giddens and the appellee was the right of possession of the cattle levied on under the writ of restitution. By the testimony it is also shown that, at the time of the levy of the writ of restitution, and prior thereto, the appellee had executed or made a bill of sale to the cattle to his son T. M. Holland, and had delivered the cattle to him, while he himself had moved away from the county. Appellee testifies that when he left the county, or, rather, when he went to Duffau, he placed the cattle with his son T. M. Holland, and gave him a bill of sale to the cattle. This was before the cattle were replevied. Marion Holland, the purchaser, testified to the same effect, and also that he had full control of the cattle. It was shown, also, that all along, from April to October, appellee denied ownership in the cattle for himself, but claimed ownership in the son. This was testified to by appellee, T. M. Holland, appellant, Byrd Smith, A. E. Noel, and W. J. Evans. The cattle were finally sold in October to satisfy a judgment against appellee in favor of Noel & Evans. T. M. Holland and appellee both asserted the title to the cattle to be in T. M. Holland after the execution in favor of Noel & Evans had been levied on them. There was never any assertion of ownership of the cattle by appellee from April until the sale of them by the officers in October, save...