Tolbert v. McSwain, 3865.

• Court: Court of Appeals of Texas
• Citation: 137 S.W.2d 1051
• Docket Number: No. 3865.,3865.
• Parties: TOLBERT v. McSWAIN, et al.
• Decision Date: 06 April 1939

137 S.W.2d 1051 TOLBERT
v.
McSWAIN, et al. No. 3865. Court of Civil Appeals of Texas. El Paso. April 6, 1939. On the Merits October 12, 1939.

Page 1052

Appeal from District Court, Gregg County; D. S. Meredith, Judge.

Action by J. R. Tolbert against Irvin McSwain and another on promissory notes and to foreclose a chattel mortgage lien securing the indebtedness, wherein a writ of sequestration was issued and property mortgaged was seized, and wherein the defendants filed a counterclaim for work and labor and a cross-action for damages for wrongful sequestration. From a judgment dismissing plaintiff's action as prematurely brought, and in favor of defendants for $428.50 on counterclaim, and for $1,120 for wrongful sequestration, the plaintiff appeals. Motions to dismiss appeal, for contempt of court and for writ of Injunction denied.

Judgment reversed and remanded.

Grisham & Grisham, of Tyler, for appellant.

H. M. Harrington, Jr., and Harrington & Harrington, all of Longview, for appellees.

WALTHALL, Justice.

Appellees, Irvin McSwain and J. W. McCray, filed a motion in this case to dismiss appellant's appeal, for contempt of court and for a writ of injunction as prayed for.

This suit originated in Gregg County, Texas, and is now pending in this court on appeal.

The proceedings now before us show the following:

On June 15, 1938, appellant filed his original petition in this cause in the District Court of Gregg County, in which he sued appellees on a series of sixteen promissory notes, each dated February 1, 1938, and each note in the principal sum of $200, alleged to have been executed by appellees and payable to appellant in monthly installments, at Kilgore, Gregg County. In the suit appellant sought to foreclose a chattel mortgage lien on certain personal property itemized and described in an exhibit made a part of the petition; that on June 22, 1938, appellant caused a writ of sequestration to issue in said cause and under said writ had Ivey S. Knox, constable at Kilgore, to take into his possession all of the personal property described in the writ and in the chattel mortgage; appellees were cited to appear and did appear in the suit, and in their answer and cross action alleged that the notes sued upon were not due, sued for moneys due appellees and for damages by reason of the wrongful levy of the sequestration, and prayed for judgment vacating the sequestration. On the trial before a jury and on the verdict judgment was awarded appellees for $428.50, and $1,120 as damages for wrongful sequestration; also judgment vacating the sequestration and ordering the redelivery of the property to appellees. The court overruled appellant's amended motion for a new trial, and appellant appealed, giving as security a supersedeas bond. Appellees did not replevy the property.

Page 1053

In their motion in this proceeding appellees allege that appellant, on March 7, 1939, posted written notices reciting that default had occurred in the condition of the said chattel mortgage, and that all of said personal property would be sold by him at the place stated on March 29, 1939; appellees further allege, on information and belief, that appellant has taken charge of the said personal property, the 1935 Chevrolet truck, describing same, together with numerous items of tools mentioned and described in said writ of sequestration, and taken same beyond the confines of Gregg County to a destination unknown to appellees.

Appellees allege that this appeal was prosecuted "on the strength of the hereinbefore mentioned supersedeas bond; that said bond does not state or purport to state that the appellant seeks to appeal from a portion only of said judgment, for which reason the appeal is an appeal from the judgment in its entirety; that said purported supersedeas bond stays the hand of the trial court and of these appellees under said judgment, and has the effect of holding the entire controversy and property in status quo pending termination of the appeal by this court, and required the said constable, Ivey S. Knox, to maintain custody of all of said personal property pending the outcome of this appeal."

Appellees submit that when appellant, as stated, took possession of the property and proceeded to advertise same for sale under the terms of the chattel mortgage that he thereby abandoned his appeal, such proceeding being in direct contravention of appellant's appeal, and has the effect of destroying the subject matter of the appeal and making moot that part of the judgment which dismissed appellant's cause of action and which vacated the writ of sequestration and directed the redelivery of the property to appellees.

Appellees pray for judgment dismissing appellant's appeal, and, in the alternative, move that in the event they are not entitled to have the appeal dismissed, they ask that appellant, the constable, and appellant's attorney be cited to show cause why they should not be held in contempt, and for a writ of injunction restraining the sale of the property and requiring all the property restored by said constable, and for such alternative relief appellees refer to and adopt the above statement as part of their alternative motion, and further say: That during the pendency of this cause in the trial court no replevy bond having been delivered to the said constable by either appellant or appellees within the period of time allowed by the statute or prior to the time appellant perfected his appeal, that thereafter said constable, acting as an officer of this court, was not authorized in law to accept a replevy bond from appellant pending appeal; that after appeal, by delivery of the replevy bond and the taking possession of the property thereunder, as alleged, would and did destroy the status quo of the subject matter of the appeal and would and did trench upon the jurisdiction and power of this court; that if appellant is not restrained he will make sale of said property and appellees will suffer irreparable loss and damage for which they have no adequate remedy in the lower court, that court having lost jurisdiction both of the parties and the subject matter of the suit by reason of the appeal; by reason of the above appellees urge the necessity of a temporary restraining order preventing the sale, and thereafter a temporary injunction restraining appellant from proceeding with said sale pending this appeal.

Appellees further submit that they have a mandatory injunction commanding that appellant redeliver said property to said constable, Knox, and commanding said constable to repossess all of said property and to hold same in his possession until the final determination of this cause of action.

The above is duly verified and the residence of each of the parties in the proceeding is stated. Also there is in the record exhibits of the several matters of record and matters not of record, referred to in the above statement.

The parties against whom complaint is made as above were cited by this court to appear and show cause as indicated, and they have filed answer herein.

Appellant Tolbert, joined by his counsel, and Ivey S. Knox, as respondents, answered by general demurrer to the motion to authorize any of the relief sought, and further say, in substance: By their verified answer they admit that the constable accepted a replevy bond filed by appellant Tolbert, and did deliver to Tolbert the mortgaged property in question; Tolbert says the property was in his building when so delivered and is yet stored therein; that there was no physical transfer of the property; respondents admit that they have advertised the mortgaged property to be sold on March 29, 1939; they admit "all matters

Page 1054

and facts as reflected by the statement of facts and transcript as filed in this cause now pending before this honorable court"; Tolbert admits that as plaintiff below and after the judgment was rendered against him and his action was abated insofar as it related to his suit upon his note and mortgage that he did replevy the property and claimed possession thereof by virtue of the replevy, and claims that he has the right to the property in addition thereto by virtue of the provision of his mortgage as shown in the statement of facts; that whether he holds by replevy or by the terms of the mortgage, he, nevertheless, has the right to hold it; Tolbert says that it is his purpose to now sell the property under the terms of the mortgage and the authority given therein, unless directed by this court not to make such sale, and that if this court should direct that no sale be made, upon notice of such direction through the clerk of this court or otherwise, he will observe the directions of this court and that an injunction is not necessary; that since this motion is set for hearing on March 30, 1939, and the proposed sale is now advertised under the provisions and power of the mortgage appellant is calling off the sale for the present and will not readvertise the property for sale until a disposition is made of this motion.

Appellant submits that the statute does not fix a time limit within which appellant may replevy the property. However, appellant in his answer insists that he has the right to possession of the property under the terms of the mortgage.

Appellant having answered that his proposed sale of the property under said advertisement has been called off, and, if we understand appellant's answer, that an injunction preventing such sale is not necessary; that should this court disagree with him in his contention that he has a right now to the possession of said property and to advertise and sell it under the authority given in the mortgage, he will, simply on notice of such disagreement on the part of the court, abide by the directions of this court as to such possession, advertisement and sale of the property.

Under such assurance on the part of appellant this court will not at this time direct the issuance...