Thorndale Mercantile Co. v. Continental Gin Co.

• Citation: 241 S.W. 260
• Decision Date: 17 April 1922
• Docket Number: (No. 799.)
• Parties: THORNDALE MERCANTILE CO. et al. v. CONTINENTAL GIN CO.
• Court: Court of Appeals of Texas

241 S.W. 260

THORNDALE MERCANTILE CO. et al. v. CONTINENTAL GIN CO.

(No. 799.)

Court of Civil Appeals of Texas. Beaumont.

April 17, 1922.

Rehearing Denied May 3, 1922.

Appeal from District Court, Milam County; John Watson, Judge.

Suit by the Continental Gin Company against the Thorndale Mercantile Company and others. From an order denying motions of defendant named praying that it be relieved from liability under judgment, and that execution issued on judgment for plaintiff be recalled and canceled, defendant named appeals. Reversed and remanded.

W. A. Morrison, of Cameron, and O. D. Graham, of Thorndale, for appellant.

Coke & Coke, of Dallas, for appellee.

WALKER, J.

On the 22d day of March, 1921, in cause No. 7253, Continental Gin Company v. Redville Gin Company et al. on the docket of the district court of Milam county, the Continental Gin Company sued out the following execution:

"The State of Texas to the Sheriff or any Constable of Milam County—Greeting.

"Whereas, on the 28th day of January, 1918, the Continental Gin Company, a private corporation, recovered a judgment in cause No. 7253, in the district court of Milam county, Tex., against the Redville Gin Company, a private corporation, for the sum of $3,347.90, with interest from that date at the rate of 8 per cent. per annum; and

"Whereas, in said cause, and in the same said judgment, said Continental Gin Company recovered a judgment against the Thorndale Mercantile Company, Gus Newton, and G. A. Williamson, jointly and severally, for the sum of $3,923.50; and

"Whereas, on appeal from said judgment taken by said Thorndale Mercantile Company, Gus Newton, and G. A. Williamson to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, at Austin, Tex., said judgment was, to wit, on October 22d, 1919, by said last-named court reformed, and said judgment in said Continental Gin Company's favor and against said Thorndale Mercantile Company and Gus Newton and G. A. Williamson was reduced from $3,923.50 to $3,460.50, and as thus reformed affirmed (said judgment was reformed in other particulars not necessary here to mention); and

"Whereas, the liability of said Thorndale Mercantile Company and Gus Newton and G. A. Williamson was predicated on a certain replevy bond made in said case by said Thorndale Mercantile Company as principal and said Gus Newton and G. A. Williamson as sureties, under which certain property sequestered by said Continental Gin Company was delivered to said Thorndale Mercantile Company; and

"Whereas, said judgment of said Court of Civil Appeals provides that execution against the said Thorndale Mercantile Company and Gus Newton and G. A. Williamson shall only be issued for such an amount as may be necessary to satisfy the said judgment in favor of the said Continental Gin Company against the said Redville Gin Company with interest and costs as therein adjudged; and

"Whereas, the mandate of said Court of Civil Appeals was duly issued by the clerk thereof and the same returned to and filed in this court on the 14th day of January, 1921; and

"Whereas, the plaintiff's judgment against said Redville Gin Company as shown by the records of this court is wholly unpaid and unsatisfied; and

"Whereas, the records of this court do not show that the property replevied in said suit as aforesaid, or any part thereof, was returned by said Thorndale Mercantile Company, or any one else, to the sheriff of Milam county, within 10 days after the rendition of the judgment of the trial court on January 28, 1918, or within 10 days after the overruling of a motion for a new trial in said case on March 2, 1918, or within 10 days after the rendition of the judgment of the Court of Civil Appeals on October 22, 1919, as aforesaid; and

"Whereas, said judgment as originally rendered and as reformed and affirmed, adjudged that `all costs herein incurred shall be taxed against the defendants, except defendants Adams and Robbins shall each only be liable for such costs as were incurred by reason of his having been made a party hereto'; and

"Whereas, the costs above referred to include those of the trial court only, as the costs of said appeal were taxed against said Continental Gin Company:

"Therefore you are hereby commanded that of the goods and chattels, lands and tenements of the said Thorndale Mercantile Company, Gus Newton and G. A. Williamson, you cause to be made the said sum of $3,460.50, with interest thereon from March 14, 1918, at the rate of 6 per cent. per annum, together with the sum of $403.24, costs adjudged against the defendants as aforesaid, and also the further costs of executing this writ; provided, you shall not under any circumstances cause to be made under this writ (excluding the matter of costs) an amount exceeding the sum of $3,347.90, with interest from February 2, 1918, at the rate of 8 per cent. per annum, same being the amount of the judgment of the Continental Gin Company against the Redville Gin Company, hereinbefore mentioned, etc.

"Herein fail not, and have you the said moneys, together with this writ, before said court, at the courthouse thereof, in Cameron, Milam county, Tex., in 90 days from this date.

"Witness my hand and the seal of said court, this 22d day of March, 1921.

                      "[Seal]               Penn Wolf
                

"Clerk District Court, Milam County, Tex."

We find that all the facts recited in the execution are true. As supplementing the facts recited in the execution, we find the following additional facts:

(1) In the judgment of the Court of Civil Appeals, described in the execution, the Thorndale Mercantile Company filed its application for writ of error to the Supreme Court, which was denied by that court on the 15th day of December, 1920.

(2) The mandate issued from the Court of Civil Appeals on the 13th day of January, 1921, and was filed in the trial court on the next day. As affecting this appeal, the material portions of the mandate are as follows:

"Before our Court of Civil Appeals on the 22d day of October, 1919, the cause upon appeal to revise or reverse your judgment between Redville Gin Company, appellant, and Continental Gin Company, Appellee, No. 6040, was determined, and therein our said Court of Civil Appeals made its order in these words:

"This cause came on to be heard on the transcript of the record, the same being inspected, because it is the opinion of the court that the judgment of the court below should be reformed in certain particulars. It is therefore considered, adjudged, and ordered that the judgment of the trial court rendered in this cause be reformed and made to read as follows, to wit: `On this 28th day of January, 1918, this cause being regularly reached on the docket and called for trial, came the plaintiff, Continental Gin Company, by its attorneys, and also came all of the defendants, Redville Gin Company, Thorndale Mercantile Company, J. L. Adams, Gus Newton and J. J. Robbins, by their attorneys. * * *"

Here followed the decree of the court disposing of all parties to the cause and all issues made by the pleadings. Judgment was entered against the Redville Gin Company for the amount of its debt and for foreclosure of the lien on the gin property. Judgment was also entered against the Thorndale Mercantile Company for the same amount as against the Redville Gin Company, giving it permission to return the property under the provisions of article 7107, Revised Civil Statutes, and decreeing that, if it failed to make due return of such property, execution should issue against it and its sureties for the amount of the judgment. If such execution was not satisfied, then the mortgaged property was to be seized and sold.

(3) The costs of appeal were taxed against the Continental Gin Company.

(4) On the 17th day of January, 1921, the Thorndale Mercantile Company returned to the sheriff of Milam county all the property held by it under its replevy bond, taking from him a receipt for the same.

On the 25th day of January, 1921, the Thorndale Mercantile Company filed its motion in the original cause, reciting the fact that it had delivered the property to the sheriff, and prayed that it be relieved from any further liability under the judgment. Again, on the 31st day of March, 1921, the Thorndale Mercantile Company filed another motion in the original cause, praying that the above-described execution be recalled and canceled, for the following reasons: (1) Appellant had satisfied the judgment against it by making due return of the replevied property: (2) no order of sale had been issued for the sale of the mortgaged property; (3) appellant had satisfied in full the judgment as rendered against it; (4) no execution could lawfully issue against appellant until all the mortgaged property was sold; (5) the execution was for an excessive amount; (6) the execution was prematurely issued, for the reason that the mandate had not been recorded in the minutes of the trial court.

The Continental Gin Company answered these motions by pleading:

(1) "Plaintiff in limine objects to the determination of the question of its rights under the judgment referred to by defendants by a...