Wandelohr v. Grayson County Nat. Bank
| Decision Date | 08 April 1908 |
| Citation | 108 S.W. 1154 |
| Parties | WANDELOHR et al. v. GRAYSON COUNTY NAT. BANK et al. |
| Court | Texas Supreme Court |
Action by Adelaide Wandelohr and others against the Grayson County National Bank and others. From a judgment for defendants (106 S. W. 413), plaintiffs bring error. Affirmed.
Galloway & Vowell and Don A. Bliss, for plaintiffs in error. A. L. Beaty, for defendants in error.
This cause has been before this court and the Courts of Civil Appeals in several shapes, and the nature and history of the litigation may be seen from the several reports. Wandelohr v. Rainey (Tex.) 100 S. W. 1155; Wandelohr v. Grayson County Bank (Tex. Civ. App.) 90 S. W. 180; Same v. Same (Tex. Civ. App.) 102 S. W. 746.
It is now before us again upon the writ of error taken out by C. B. and Adelaide Wandelohr and the sureties upon their replevy bond, Paul Waples and Jot Gunter, the transcript in which the Court of Civil Appeals was required by mandamus from this court to have filed and considered, as will appear from the opinion in Wandelohr v. Rainey, supra. Thereafter the Court of Civil Appeals decided the cause, holding that Mrs. Wandelohr was concluded by the judgment of affirmance on certificate, which appears from the report just referred to; that her husband had not prosecuted this writ of error nor assigned errors in his own right, but had merely joined his wife pro forma in order to assert her rights, and that the assignments complaining of errors of the trial court against her were therefore met by the judgment of affirmance; that the sureties, Waples and Gunter, could not be heard upon those assignments which complained only of rulings of the trial court affecting her rights in the litigation over the property; and that the only assignments of error which could be considered upon this complaint showed no error against them. Practically all of these holdings are questioned in the application to this court for a writ of error, which is presented by Mrs. Wandelohr, by the representatives of C. B. Wandelohr and of Gunter, who have died since the writ of error to the Court of Civil Appeals was perfected, and by Waples, but we have reached the conclusion that all of them are correct. It surely needs no argument or citation of authority to sustain the proposition that the writ of error cannot be prosecuted by or for Mrs. Wandelohr to reverse the judgment of the district court after that judgment has been affirmed against her on appeal. As to C. B. Wandelohr, the judgment of affirmance on certificate against him, as well as against Waples and Gunter, was reversed by this court, as appears from its judgment, but not from the opinion referred to, and the judgment affirming that of the district court was restricted to Mrs. Wandelohr. This was upon the ground that C. B. Wandelohr, Waples, and Gunter had not themselves so perfected an appeal as to make them liable to have the judgment against them affirmed on certificate; that proceeding being available only against appellants. The judgment of affirmance against Mrs. Wandelohr, therefore, does not operate as an absolute bar to a writ of error against any one but her, but it does preclude further inquiry as to her rights, and as to the rulings of the trial court affecting them, whether such inquiry is invoked by her or by others attempting to assert her claims.
Upon examination of the petition and bond for writ of error and the assignment of errors filed in the district court, it appears that C. B. Wandelohr merely joined his wife therein in order to prosecute it in her behalf. No assignments of error were made by him; those found in the record being made by Mrs. Wandelohr and by Waples and Gunter. The proceedings are so shaped that, excepting some matters affecting the sureties alone, they present only complaints based upon Mrs. Wandelohr's claims. It is true, as urged, that the representatives of a plaintiff in error who dies pending the writ may thereafter prosecute it; but this is upon the assumption that he was himself prosecuting it in his own behalf. Wandelohr was not doing this, but was merely joining in the proceeding asserting the rights of his wife. When he died, his representatives, as such, had nothing to prosecute in behalf of his estate, and all questions involved were concluded by the affirmance against her. The same course of reasoning disposes of much that is urged by the sureties. It is asserted that they may avail themselves of any errors committed against their principals in the trial which brought about the judgment against them; but this is not true. It may be admitted that there may be circumstances under which sureties, to protect themselves, will be allowed, upon proper application to the courts, to make defenses which the principals could make, but will not make. This is especially true in case of collusion between the principal and the adverse party. But the ordinary rule is that sureties upon a bond given to replevy property in a sequestration proceeding must leave the conduct of the litigation to, and abide by, the judgment rendered against the principal, for the reason that that is precisely what they undertake to do. Garner v. Burleson, 26 Tex. 348; Siddall v. Goggin, 68 Tex. 708, 5 S. W. 668. These sureties, as is usual and proper, have merely stood behind their principal, who were the parties to the litigation, relying upon the defenses made and the proceedings taken by them to prevent a final recovery of the property in controversy, and for damages upon the bond. In this writ of error, except their complaints of some matters directly affecting them as sureties which will be discussed later, they rely on assignments made by Mrs. Wandelohr questioning the correctness of the judgment against her. All such assignments are met by the judgment of affirmance; and, as she can no longer urge them, certainly they cannot. The giving of such a bond cannot ordinarily be allowed to have the effect of introducing new parties into the case to litigate about the subject-matter of the suit. Such litigation must be conducted by the parties thereto, and the sureties obligate themselves to abide by its results to the...
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