The Leader v. Elder Mfg. Co., No. 1470-5708.

• Court: Supreme Court of Texas
• Writing for the Court: Sharp
• Citation: 39 S.W.2d 880
• Parties: THE LEADER, Inc., et al. v. ELDER MFG. CO.
• Decision Date: 10 June 1931
• Docket Number: No. 1470-5708.

Page 880

39 S.W.2d 880 THE LEADER, Inc., et al.
v.
ELDER MFG. CO. No. 1470-5708. Commission of Appeals of Texas, Section A. June 10, 1931.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by the Elder Manufacturing Company against The Leader, Incorporated, and others, in which certain property of the named defendant was attached and recovered back by defendant by giving replevin bond. To review judgment of Court of Civil Appeals [25 S.W.(2d) 274] reversing judgment of trial court, and rendering judgment for plaintiff, defendants bring error.

Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

Wynne & Wynne and Angus G. Wynne, all of Kaufman, for plaintiffs in error.

Carter & Berwald and Elihu E. Berwald, all of Dallas, for defendant in error.

SHARP, J.

The Elder Manufacturing Company instituted this suit in the county court of Kaufman county against The Leader, Inc., to recover upon four checks aggregating $302.40, and a writ of attachment was at the same time issued and placed in the hands of the sheriff for execution. The writ was executed and return made thereon. Thereafter a replevy bond was tendered to the sheriff and accepted by him. A motion to quash the affidavit and bond was made by William Goldstein, and the trial court entered judgment quashing the affidavit and bond in attachment. The record shows that the Elder Manufacturing Company filed an amended petition on the same day that the motion to quash the affidavit and bond were filed and alleged that it complained of The Leader, Inc., and The Kemp Leader, Inc., alleging them to be one and the same.

The trial court gave judgment for the Elder Manufacturing Company against The Leader, Inc., but quashed the affidavit and bond in attachment. An appeal was made to the Court of Civil Appeals and the judgment of the trial court was reversed, and judgment rendered that the Elder Manufacturing Company have judgment against the sureties on the replevy bond for the full amount of the judgment rendered in favor of Elder Manufacturing Company against The Leader, Inc., 25 S.W.(2d) 274. Writ of error was granted.

Plaintiffs in error contend that it affirmatively appearing from the record that the bond and affidavit in the attachment proceedings were quashed, and that the replevy bond was never introduced in evidence, but on the contrary was expressly excluded, the Court of Civil Appeals erred in rendering judgment against the sureties on the replevy bond, based upon evidence not admitted upon the trial, for since the Court of Civil Appeals has no power to find facts in the first instance, it could not enter judgment against the sureties on the bond which was excluded from evidence.

It is undisputed, as shown by the record, that the replevy bond was never introduced in evidence, but, on the contrary, plainly shows that the bond was excluded. The rule is well established in this state that the Court of Civil Appeals has no power to find facts in the first instance, and under R. S. 1925, article 1856, authorizing that court on reversal of a judgment to render such a judgment as the trial court should have rendered, "except when it is necessary that some matter of fact be ascertained," where a judgment is reversed the Court of Civil Appeals cannot render a judgment for the other party based on evidence not admitted on the trial, but must remand the case to the trial court. Patrick v. Smith, 90 Tex. 267, 38 S. W. 17; Eidson v. Reeder et al., 101 Tex. 202, 105 S. W. 1113; Abbott Oil Co. v. San Antonio Brewing Ass'n, 104 Tex. 574, 141 S. W. 517; Nast...