Meyer Bros. & Co. v. Sligh , 81 Tex. 336 ( 1891 )

This case was a motion filed in the case of J.M. Sligh v. Patterson Co., No. 6570, in the District Court of Dallas County May 3, 1888, and making S.B. Hopkins a party thereto, setting forth that on January 11, 1888, J.M. Sligh brought this suit against Patterson Co. and sued out an attachment, which was on the same day levied on the stock of drugs, medicines, etc., belonging to said Patterson Co., situated in their store house on Main Street, in Dallas; and that on the same day S.B. Hopkins also brought a suit against said Patterson Co. and caused an attachment to be levied on the same property; that afterward, on January 26, 1888, on the application of Sligh and Hopkins the goods were sold as perishable property in accordance with the statute, and the proceeds of the sale made February 3, 1888, were paid into the registry of the court; that appellants became the purchasers of said goods for the sum of $6025, which they paid to the sheriff, and he paid to the clerk, as he was directed to do by said order of sale.

On March 16, 1888, the appellees Sligh and Hopkins respectively obtained judgment in said court against said Patterson Co. by default for their debts for the full amount claimed by them, the judgment in cause No. 6570 of Sligh v. Patterson Co. reciting "that the attachment lien of S.B. Hopkins in said cause No. 6569 on said stock of drugs, goods, etc., is superior to the lien of said J.M. Sligh in this cause;" that on the 17th of March, 1888, the clerk of the court paid to S.B. Hopkins out of the proceeds of the sale of said property the sum of $3557.46 in full satisfaction of his said judgment; that he paid the balance of said proceeds, viz., $2481.44, to said Sligh in partial satisfaction of his judgment; that among the articles attached and sold as aforesaid were one No. 2 Sterling generator and four ten-gallon seamless copper fountains of the value of $310, two gold-set diamond rings of the value of $120, and five-sixths of a dozen of anti-malarine (a patent medicine) of the value of $6.25, that did not belong to and were not the property of said Patterson Co., and were not liable to seizure and sale under said writs of attachment; that said generator and fountains were the property of James W. Tufts, the manufacturer, and he had retained a lien thereon to secure the payment of the sum of $195, the balance of the purchase money due from said Patterson Co. thereon, duly recorded, etc., and of which appellants had no knowledge whatever at the time of the purchase of said goods; that the diamond rings were the property of Giles Bro. Co., and not of Patterson Co.; and that the patent medicine was the property of the Specific Manufacturing Company and not Patterson Co.; that appellants were compelled and obliged to settle the lien on said generator and fountains, and paid in satisfaction thereof $108 to said Tufts; that he was compelled to pay Giles Bro. Co. $96 for said diamond-set rings, and to deliver to the Specific Manufacturing Company the said patent medicine; that appellants bought the said property at said sheriff's sale and paid therefor, and did not know that the same was not the property of said Patterson Co., and with no actual notice whatever of any claim thereto by any other person. Appellants allege that they paid $6025 for the entire stock of goods, but do not show what the property which gave rise to the controversy sold for.

Said motion was filed at the same term of the court at which the judgments were rendered in the cases of Sligh v. Patterson Co. and Hopkins v. Patterson Co., and sought to have paid to appellants out of the proceeds of sale of said goods the sums of money set out, amounting to the sum of $210.25.

Appellees filed a demurrer to the motion, which was sustained, and appellants having declined to amend judgment was rendered against them and they gave notice of appeal, and the action of the court below is now here for revision.

Property in custodia legis when sold as perishable property by order of the court under the statute, becomes the absolute property of the purchaser at the sale. Young v. Keller, 7 S.W. Rep. (Mo.), 293. The appellants Meyer Bros. Co. were not obliged to account to the true owners of the property purchased by them at the sale made thereof by the sheriff under an order of the judge; and having lost their title to the property the remedy or the owners was either to sue the sheriff or to follow the proceeds into the registry of the court. Having the right to pursue the proceeds of their property into the registry of the court, the owners could by a motion intervene in the suit in the proceedings of which it was sold and have such proceeds paid over to them on inquiry and ascertainment of the right and the amount. That the proceeds had been already paid over by the clerk to the attaching creditors could make no difference. The court has control over its judgment until adjournment, and if it should appear that the money had been wrongly paid over to the plaintiffs in the suit, it would be proper for the court to direct the plaintiff to whom it had been so paid to refund it and to award judgment against him therefor.

But the appellants having obtained absolute title to the property at the sale were volunteers in their payment therefor to the owners, and it is doubtful whether they were entitled to be subrogated to the right of the owners to sue for the proceeds. In any case they could only recover the amount which the property sold for if it was less than the amount paid by them, and there is nothing in the motion showing what the property sold for, and demurrer was properly sustained.

We report the case for affirmance.

Affirmed.

Adopted June 9, 1891.