Jones v. Lawrence , 151 S.W. 584 ( 1912 )

1. This case was a trial of the right of property in the county court on appeal from justice's court. Appellant moved to dismiss said appeal for want of a proper description of the judgment in the appeal bond, and assigns error upon the refusal of the court so to do. We overrule this assignment upon the authority of the following cases: Warren v. Marberry, 85 Tex. 196, 19 S.W. 994, and authorities there cited; also, Kusmierz v. Mahula, 77 S.W. 966; Dillard v. Allison, 40 S.W. 1024; Perry v. Cullen, 6 Tex. Civ. App. 178, 25 S.W. 1043; Ry. Co. v. Lockhart, 39 S.W. 321; Ry. Co. v. Vowel, 34 S.W. 355.

2. The mortgaged property had been sold to Lawrence Lee, who were partners in business in Coleman county. The mortgagors were sued in McCulloch county, and Lee was made a party to that suit. Judgment was rendered against the mortgagors for the debt, and against all parties as to the foreclosure of the property. The constable levied upon and took into his actual possession the mortgaged property, a horse. Lawrence filed his claimant's affidavit and bond. Judgment in the county court was rendered in his favor. We deem it unnecessary to discuss the issues raised by the numerous assignments of error further than to say that Lawrence, as one of the members of the mercantile firm, was entitled to the possession of said horse as against any right that could be acquired to same by any judgment against Lee. Lee's interest, if any, in the horse might have been levied upon in the manner pointed out by the statute. Article 2352, R.S. 1895. A claimant in the trial of the right of property is entitled to judgment, when the evidence shows that he was in the rightful possession of property, and that such possession has been Disturbed by the levy of the writ, or that he was rightfully entitled to such possession, and that he has been deprived of the exercise of such right by such levy. White v. Jacobs, 66 Tex. 463, 464, 1 S.W. 344; Willis v. Thompson, 85 Tex. 307, 20 S.W. 155.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.