Williams v. Bailey

• Decision Date: 14 February 1895
• Citation: 29 S.W. 834
• Parties: WILLIAMS v. BAILEY.
• Court: Texas Court of Appeals

29 S.W. 834

WILLIAMS v. BAILEY.

Court of Civil Appeals of Texas.

February 14, 1895.

Appeal from district court, Victoria county; S. F. Grimes, Judge.

Action for debt by F. B. Williams against S. M. Bailey. Judgment was for plaintiff against Bailey for his debt and foreclosure of an attachment lien; but it was ordered that the clerk pay over to the intervener, Thurmond, the proceeds of the goods sold on the attachment, on the ground that the goods belonged to him. On exceptions, and from judgment in favor of intervener, plaintiff appeals. Reversed.

A. B. & W. M. Piticolas, for appellant.

WILLIAMS, J.

Appellant sued appellee for a debt, and sued out, and caused to be levied on certain goods, a writ of attachment. Pending the suit the goods were, by order of court, sold, and the proceeds were deposited in court. C. L. Thurmond intervened alleging that, prior to the issuance of the attachment, Bailey, the defendant, had conveyed and delivered to him the goods levied on, in trust, to secure the payment of certain debts which he owed; that the plaintiff had caused them to be taken from his possession under the attachment, and sold, and had thereby converted them to his own use. He prayed for judgment against plaintiff for the full value of the goods, which was alleged, and in which sum, he averred, he was damaged. Plaintiff excepted to the plea, and moved to strike it out, on the ground that it showed no interest of the intervener in the subject-matter of the suit. This was overruled, and after a trial the court gave judgment for plaintiff against Bailey for his debt, and foreclosure of attachment lien, but ordered the clerk to pay over to the intervener the proceeds of the goods sold, less the costs of sale, etc. The overruling of the exceptions, and the judgment in favor of intervener, are assigned as error.

The subject-matter of the suit was the debt sought to be collected by plaintiff from Bailey. The goods were attached as a security, but the right of third parties in them was not put in issue by the form of the proceeding. The plaintiff was entitled to judgment for his debt, and the enforcement of the attachment follows, as a matter of course. The right of the intervener to recover of plaintiff and the sheriff damages for the conversion was not to be in any way, so far as the pleadings show, affected by the rendition of such a judgment. Under the decision of our courts, a right to intervene was not shown by the plea. Rodrigues v. Trevino, 54...