Wooters v. Smith

• Decision Date: 03 February 1882
• Docket Number: Case No. 1409.
• Citation: 56 Tex. 198
• Parties: J. C. WOOTERS v. J. B. SMITH.
• Court: Texas Supreme Court

56 Tex. 198

J. C. WOOTERS

v.J. B. SMITH.

Case No. 1409.

Supreme Court of Texas.

Feb. 3, 1882.

APPEAL from Houston. Tried below before the Hon. J. R. Kennard.

Nunn & Williams, for appellants.

I. The court erred in sustaining defendants' third special exception to plaintiffs' petition, and holding that the bond or cause of action set up in plaintiffs' petition was merged in the former judgment, in suit of Wooters & Stone v. Whitten, and barred thereby.

II. The bond not being conditioned as required by the statute, the court, in case of Wooters & Stone v. Whitten, had not jurisdiction to render judgment on it, and no valid cause of action was merged in any judgment rendered on it. Haile v. Oliver, 52 Tex., 443;Janes v. Reynolds, 2 Tex., 257;Ayers v. Cayce, 10 Tex., 105.

III. The surety, Smith, being dead at the time of judgment, the right to establish the liability on the bond as a claim against his estate could not be merged in a judgment which refused to declare such liability.

IV. The petition and trial amendment presented a good cause of action, and the court erred in dismissing the suit on demurrer. As to bond being good common law obligation, see Johnson v. Erskine, 9 Tex., 10;Harris v. Shackelford, 6 Tex., 136;Speak v. U. S., 9 Cranch, 28;U. S. v. Linn, 15 Pet., 290;Sheppard v. Collins, 12 Iowa, 570;Morse v. Hodson, 5 Mass., 314; Barnes v. Webster, 16 Mo., 250; Waters v. Riley, 2 Harr. & Gill, 305; Drake on Attachment, sec. 327; 1 Par. on Con., p. 431; 2 Id., p. 512;State v. Layton, 4 Harr. (Del.), 512; Justices v. Wynn, Dudley (Ga.), 22; Justices v. Smith, 2 J. J. Marsh., 473;Hoy v. Rogers, 4 T. B. Mon., 225;Cobb v. Curtis, 4 Littell, 235; Speck v. Commonwealth, 3 Watts & S. (Pa.), 324.

J. R. Burnett, for appellees.

STAYTON, ASSOCIATE JUSTICE.

This suit was brought by J. C. Wooters and Harrison Brown against B. M. Whitten and John B. Smith, administrator of estate of J. T. Smith, to recover the sum of $2,000.

The petition alleged that on the 27th day of October, 1873, a suit was pending in the district court of Houston county, in which J. C. Wooters and the surviving widow and children of Warren D. Stone were plaintiffs, against B. M. Whitten, to recover a certain tract of land; that in said cause, on the 28th of October, 1873, a writ of sequestration was sued out, and levied upon the land in controversy, which at that time was held by Whitten under J. T. Smith; that Whitten and Smith were desirous that Whitten should retain possession of the land during the pendency of that suit, and that to enable him so to do, Whitten as principal, and J. T. Smith and Mrs. Johnson as sureties, on the 17th day of November, 1873, executed to the sheriff who had levied the writ of sequestration a bond intended to operate as a replevin bond, for the sum of $3,000, payable to J. C. Wooters et al. (the names of the other payees not being given), conditioned that Whitten “would not remove the property out of the limits of Houston county during the pendency of said suit; that he will not make an improper use of the same, and that he will have said property, with the value of the hire, fruits or revenue thereof, forthcoming to abide the decision of the court, or that he will pay the value thereof, and of the hire, fruits or revenue in case the suit shall be decided against him.”

It further alleged that said bond was executed for the use and benefit of the plaintiffs in that suit, and to secure to them “the value of the rents, profits, fruits and revenues of said land;” and that the officer to whom the same was delivered, in consideration of the bond, acting for the plaintiffs, returned the property to Whitten; that the cause in which the bond was given was pending in the district court until the 18th day of March, 1880, at which time a judgment was rendered against Whitten and his sureties for the sum of $2,000, the value of the use and occupation of the land sequestrated for the years 1873, 1874 and 1875, which judgment was afterwards arrested as to the sureties Smith and Johnson, upon the ground of their decease before that date.

It further alleged that in the year 1875, in a suit pending in the circuit court of the United States (instituted before the suit in Houston county in which the bond was given), in which Warren Stone and E. H. Harris were plaintiffs, during the pendency of which Wooters purchased the interest of Harris in the land in controversy, judgment was recovered by the plaintiffs therein for the land in controversy, and that in the spring of 1876 Wooters and the widow and heirs of Stone were put in possession of the land in controversy by process issued under that judgment; that the suit in Houston county was continued for the “purpose of recovering the value of the hire, fruits or revenue of said land, as by said bond stipulated for, during the years 1873, 1874 and 1875, and up to the spring of 1876;” that Whitten had possession of the land during those years, paying rent to J. T. Smith, and that such possession was permitted in consideration of the bond before referred to.

It was further alleged that no part of the $2,000 adjudged to Wooters and the Stones had ever been paid, and that Whitten and his sureties “did not have the value of the hire, fruits or revenues of said land forthcoming to abide the decision of the court, nor did he or they pay the value of such hire, fruits or revenues when said suit was decided against him, as they had bound themselves to do; and they alleged that by the breach of the bond they were damaged in the sum of $2,000, the alleged value of the hire, fruits and revenues.”

It further alleged that a claim was duly authenticated and presented to the administrator of Smith's estate on the 26th day of April, 1881, for the sum of $2,000, based on the bond, judgment and facts stated in the petition, and that the same was rejected; the claim as presented consisted of an account made out in favor of Wooters and the widow and children of Warren Stone, deceased, against the estate of J. T. Smith, and was as follows:

“April 13, 1881.

Estate of John T. Smith, J. B. Smith, administrator, Dr., to J. C. Wooters, Malvina D. Stone, executrix of Warren Stone, deceased, William Garrett Stone, Warren Stone, Jr., Amanda E. Butts and her husband, John F. Butts.

To value of fruits and revenues of part of John Durst grant of land in Houston county, known as Pickens place, formerly occupied by B. M. Whitten and sequestrated by said Wooters et als., and replevied by said Whitten with said John T. Smith and William Johnson as sureties, and judgment was afterwards rendered against said Whitten for value of said fruits and revenues, and reference is made to the bond signed by said Whitten, Smith and Johnson and to certified copy of such judgment hereto attached and marked exhibit A and B, and made the basis of this claim; said bond of date 17th November, 1873, for the sum of $3,000, and copy of said judgment of date March 16, 1880, for $2,000; such fruits and revenues of value of $2,000.” Copies of the bond and judgment were attached to the claim, which was sworn to by Wooters, and all of said papers were made a part of the petition.

The judgment made a part of the claim purported to be against Whitten as principal and Smith and Johnson as sureties, which was the original judgment as rendered, and as it stood before the motion to arrest the same as to the sureties was made and sustained; it purported to be rendered upon the bond executed by Whitten and his sureties, and for the value of the use and occupation of the land.

The petition alleged that pending the suit the Stones transferred their interest in the claims therein asserted to W. A. Stewart, and that they thereafter prosecuted the suit for his benefit, by which he became the owner of the judgment bond and claim, and that since the presentation of the claim to the administrator of Smith's estate said Stewart had transferred all of his claim to plaintiff Brown.

The prayer was for the establishment of the claim against Smith's estate; for revival of judgment against Whitten, no execution having been issued against him within one year after the judgment was rendered; and if the condition of the bond could not be enforced, that they have “judgment for the sum of $3,000, the amount of the obligation, interest and cost.”

To the petition the defendant Smith answered:

1st. By general demurrer.

2d. Special demurrer, based upon the fact that the suit was not brought in the name of the persons in whose name it was made out and presented, nor upon such a judgment as that presented to the administrator for allowance.

3d. Special demurrer, which set up the insufficiency of the bond either as a statutory or common law obligation, and the statute of limitations.

4th. Special demurrer, setting up the merger of the bond in the judgment rendered thereon against Whitten alone.

The special demurrer, which set up the merger of the bond, was sustained, and all others were overruled, to which the defendant excepted; after which plaintiffs filed a trial amendment, in which they alleged that the judgment rendered against Whitten and his sureties on the bond was arrested as to the sureties on the 20th of March, 1880; and that the judgment rendered as to Whitten was left in full force, and that it had never been paid; that no statutory judgment existed upon the bond, and that plaintiff never sought to enforce the bond otherwise than by this suit, believing that the same could not be enforced by summary judgment as a statutory bond; that Whitten was insolvent, and that neither he nor his sureties were parties to the suit in the circuit court of the United States under which possession of the bond was obtained in the spring of 1876.

To this amendment the defendant filed a general and special demurrer, the last of which set up the merger of the bond by the judgment rendered against Whitten.

The demurrers were sustained and the cause was dismissed. The record...