Longcope v. Bruce , 44 Tex. 434 ( 1876 )

Ireland, Associate Justice.

Bruce alleged that A. J. Wynn was part owner of the stock of goods levied on by the sheriff, and asked that he be made a party plaintiff. Wynn came in by proper plea and the cause progressed in the name of Bruce and Wynn until the rendition of the judgment, and then we find Bruce alone recovering. Appellee, when on the witness stand testified “ that he owned, one-half of the goods levied on, and that A. J. Wynn was the owner of the other half.”

The judgment however is in favor of Bruce alone, and the cause does not appear to have been disposed of in any way so far as A. J. Wynn is concerned. This is error.

The jury did not say against whom they found. There was no issue found as between Longcope and Smith, who had impleaded each other on the bonds of indemnity, and yet there is not only a judgment against Longcope, but he is made liable for the judgment before Smith can be disturbed. Certainly it'requires no argument to show that such a finding will not support this judgment against Longcope. (Claiborne v. Tanner, 18 Tex., 77.)

Longcope cannot be held liable in this suit by the plaintiff on the bond of indemnity. If there was a trespass committed by Smith, and Longcope had joined in that trespass, he could have been sued with the sheriff; but this judgment makes him liable, because he had indemnified the sheriff.

The court charged the jury that “ if Bruce really had an interest in the goods levied on and sold, it was a trespass in the sheriff to seize and sell his portion of the goods under an execution against W. L. Wynn.”

This charge is based upon the theory that where there is a stock of goods owned jointly by two or more persons, the interest of one cannot be sold without subjecting the officer to an action for damages by the other partners. The reverse of this is believed to be the settled law of this country, and it has been so understood by the courts and the profession until the announcement of the decision in Warren v. Wallis, 38 Tex., 225. The case in 38 Tex. has been overruled at this term of the court.

The jury was told further that if it believed from the evidence that the property levied on by the sheriff was the property of plaintiff, and not the property of W. L. Winn, then the sheriff and his sureties and O. S. Longcope were liable. This charge was- also erroneous. The plaintiff could not sue Longcope in this suit on his bonds to the sheriff; and to make him liable as a trespasser is to assume, as the charge does, that he made himself a party to the trespass, which was denied by Longcope.

In another part of the charge the jury was told that if they believed from the evidence the property seized belonged to Bruce, or to Bruce and Wynn, then the defendants were liable for what the goods were worth. This charge was also erroneous.

The suit, by the pleadings, was a suit by Bruce and Wynn; and if the proof showed that only one of them had an interest in the property, there could be no recovery, because the proof would not have sustained the case made in the pleadings. (Hall v. Jackson, 3 Tex., 305 ; Thompson v. Thompson, 12 Tex., 329; Parker v. Beavers, 19 Tex., 410.)

It is insisted that Longcope made himself a trespasser by giving the indemnity bonds. The executions were levied on the 1st March, and the bonds are dated, one 14th of March and the other in April. This would be carrying the doctrine to a great length, and would be in effect to make all persons who should express the opinion that the goods belonged to the execution debtor, and approved of the levy, joint trespassers with the sheriff. The real issues, as between the plaintiffs and Longcope, were, 1st, Did the goods, or any interest in them, belong to the execution defendant? If this could have been answered in the affirmative, then there would have been no cause of action against either Smith or Longcope for simply taking the goods in execution ; if answered in the negative, then, 2d, Did Long-cope order or instigate the sheriff to levy on these goods ?

And unless this could have been answered in the affirmative, there was no cause of action against Longcope in favor of the plaintiffs.

If the sheriff shall suffer loss by reason of the levy, after making all the defense he can, he may then sue Longcope on the indemnity bonds, and the courts can then determine the extent of his liability. We express no opinion on. the facts in this case'as to the issue between the plaintiffs and Smith ; Longcope alone has appealed.

The judgment is reversed and the cause remanded.

Reversed and remanded.