Tidball v. Eichoff

• Decision Date: 13 April 1886
• Citation: 17 S.W. 263
• Parties: TIDBALL <I>et al.</I> v. EICHOFF.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

17 S.W. 263

TIDBALL et al. v. EICHOFF.¹

Supreme Court of Texas.

April 13, 1886.

Appeal from district court, Tarrant county; T. J. BEALL, Special Judge.

Suit by William Eichoff against T. A. Tidball and others on a bond for $300, executed by defendants, conditioned to pay all damages plaintiff might sustain if defendants as interveners failed to maintain their rights to the proceeds of a foreclosure sale in the action of William Eichoff against Henry Eichoff. R. E. BECKHAM, the county judge of Tarrant county, was disqualified from trying the cause by reason of having been counsel, and the suit was therefore brought in the district court. Judgment for plaintiff. Defendants appeal. Affirmed.

The first proposition under plaintiff's second assignment of error is as follows: "To sustain the bond as a common law bond it must appear in substance that the person now seeking to enforce the same agreed and consented to the contract evidenced thereby with the makers thereof."

Hyde Jennings and J F. Cooper, for appellants. S. P. Greene, for appellee.

WILLIE, C. J.

The amounts claimed in the plaintiff's petition as damages growing out of the execution of the bond filed by the interveners in the case of Eichoff v. Eichoff, are as follows. The attorney's fees in defending against the claim of interveners, $150; the personal expenses in coming from his home in Cairo, Ill., and staying in Ft. Worth, attending court in said contest, $150; interest at 10 per cent. on $2,929.25, the proceeds of the sale of property in the hands of the court, and stayed there by reason of the execution of the bond upon which this suit is brought, $128.81; court costs paid in the matter of the above contest, $62.15; total, $490.96. This amount being in controversy between the parties, the case was within the jurisdiction of the county court, and of the district court when the cause was removed there by reason of the disability of the county judge. But it is said that it was adjudged by this court, when the cause was before us on a former appeal, (61 Tex. 421,) that the only item of damages which the plaintiff was entitled to recover was the interest upon the $2,929.25 during the time it was stayed in the hands of the court by reason of the execution of the bond. The court below followed the decision of this court upon that point, and rendered judgment for 8 per cent. interest per annum upon the above sum, amounting, for the time it was detained from the plaintiff, to $102.50. It is not claimed that, this amount being within the exclusive...