Watts v. Overstreet

• Decision Date: 28 October 1890
• Citation: Watts v. Overstreet, 14 S.W. 704, 78 Tex. 571 (Tex. 1890)
• Parties: WATTS <I>et al.</I> v. OVERSTREET.
• Court: Texas Supreme Court

14 S.W. 704

WATTS et al. v.OVERSTREET.

Supreme Court of Texas.

October 28, 1890.

Commissioners' decision. Appeal and error from district court, Shackelford county; T. H. CONNOR, Judge.

Crosby & Edwards and A. H. Clarke, for appellants.L. W. Campbell and J. M. Moore, for appellee.

ON MOTION TO STRIKE OUT TRANSCRIPT.

COLLARD, J.

The judgment of the court below was in favor of J. C. Overstreet and against R. E. Watts, A. P. Root, George L. Price, and E. R. Manning, the original defendants, and the sureties on their replevy bond.Price and Root appealed to the supreme court, and, afterwards, Manning brought the case to the supreme court by writ of error.Appellants and plaintiff in error caused to be filed a transcript in the supreme court, May 7, 1888, and appellee caused a transcript to be filed same day, when the clerk numbered them as two cases, (Nos. 6659and6660,) when in fact there was but one case.The appellee moves to strike out the transcript filed by appellants, and to have the case submitted on the transcript filed by her, because the certificate of the clerk to the transcript filed by appellants is to the effect that said transcript contains a true copy of all the proceedings as per list furnished by the attorney for defendants, whereas, the certificate to the transcript furnished by the appellee is to the effect that it contains a true copy of all the proceedings in the cause.The certificates are as stated in the motion, and we think it ought to be granted.Rev. St. arts. 1410, 1411;Rule 90 for the district court.Appellants should pay the cost of their transcript.

ON THE MERITS.

This is the second time this cause has been before the supreme court.The suit was originally brought by J. C. Overstreet on three promissory notes for $1,000 each, and 12 per cent. interest per annum.She made A. P. Root, George L. Price, and E. R. Manningpartiesdefendant; sequestered 2,000 head of sheep in possession of defendants, upon which she set up a lien.Before the first trial, or during its progress, she took a nonsuit as to defendants Price and Root.The jury gave verdict for defendant Manning, and judgment was rendered for all the defendants, from which plaintiff appealed.The supreme court reversed the judgment, stating in a note to the opinion that "the reversal of the judgment below only applies to that portion of it which is in favor of appellee, Manning, and not to that which is in favor of A. P. Root and G. L. Price, the appellant in the court below having abandoned all right to recover against them."The opinion and statement of the case will be found in 67 Tex. 660-664, 4 S. W. Rep. 248-252, inclusive.It was there decided that plaintiff's lien was superior to Manning's rights by purchase, for obvious reasons.Upon the second trial, from which this appeal is taken, judgment was again taken against Watts for the amount of the notes, $4,620, and foreclosure of her lien on the Manning half of the sheep, 962 head; also judgment for plaintiff for $3,374, (the value of the same at $3.50 per head,) against Manning, Price, and Root, and the sureties on their replevin bond, Price and Root appealed, and Manning brought the case up by writ of error.Appellants and plaintiff in error assign errors separately.We will notice those of appellants first.They say that the court"erred in rendering judgment against them because they were in no manner parties to the suit at the time of its rendition."The replevy bond was a joint bond as principals by the defendants Manning, Price, and Root, and was in the ordinary form; S. J. Conner, W. S. Manning, and J. C. Lynch, sureties for $6,000.The dismissal of Price and Root on the former trial appears of record in the judgment as follows: "And thereupon the counsel for the plaintiff announced in open court, after the evidence had been closed, and during the argument of counsel to the jury, that they would not prosecute this suit further against the defendantsA. P. Root and Geo. L. Price; and that the plaintiff herein had, and set up, no claim or lien by or upon the one-half interest of said Root and Price in the flock of sheep sequestered in this cause by the plaintiff, and that she abandons all claim or lien on the same, by virtue of the sequestration levied on the said sheep."The jury returned a verdict "for the defendant," and judgment was rendered "that plaintiff herein, J. C. Overstreet, do have and recover of and from defendantsE. R. Manning, A. P. Root, and Geo. L. Price, nothing by reason of the premises; and that Root and Price do have and recover of and from the plaintiff herein, on her sequestration bond, all their costs expended and incurred by said Root and Price by reason of the sequestration herein issued against them, and levied on their one-half interest in the sheep."It is contended by appellee that the nolle prosequi was only intended to have effect to dismiss the suit against Root and Price as defendants claiming one undivided half of the sheep, and that the dismissal only had that effect, and that it did not affect their liability as joint obligors with Manning on the replevin bond for his claim to the other half.The judgment is in no way qualified, and no reservation is made therein, and we think it put Root and Price out of court in every capacity in which a judgment could have been rendered against them.At the time of the dismissal, it was evidently supposed by the plaintiff that these parties were only bound for the value of one-half of the sheep, the half claimed by them as defendants, and so there was an absolute unconditional judgment rendered in their favor, and for their costs, which, on appeal by plaintiff, was affirmed by the supreme court.They were never brought back into the suit by any pleadings or process, and were in fact not before the court when the last judgment was rendered.Had they been merely sureties on the...