Goode v. Farmers Produce Co. ( 1937 )

Suit by the Produce Company against Smith and Davidson, with writ of attachment levied upon 48 cases of eggs. Defendants replevied the eggs, and the judgment was in favor of plaintiff against defendants for the amount of the debt, with foreclosure of the attachment lien. The court also rendered a summary judgment against the sureties on the replevin bond, "if the eggs cannot be located." The replevin bond was more onerous than required by statute, and therefore must be treated as a common-law forthcoming bond. Therefore summary judgment was improper. Mariany v. Lemaire (Tex.Civ.App.) 83 S.W. 215; Norvell-Shapleigh Hardware Co. v. Hall Novelty Machine Works (Tex.Civ.App.) 91 S.W. 1092; Elrod Bros. Phillips v. Rice (Tex.Civ.App.) 99 S.W. 733; Golman v. Johnson (Tex.Civ.App.) 97 S.W.2d 334.

The sureties alone have appealed (by writ of error); and the appellee Produce Company has confessed error as to the summary judgment against the sureties, but asks that as to them the judgment be reversed and the cause remanded, and that the judgment be in other respects affirmed.

The appropriate procedure under these circumstances appears to be to dismiss as to the sureties without prejudice to the rights of the Produce Company to proceed against the sureties by plenary suit. See above-cited cases.

The trial court's judgment against the sureties (plaintiffs in error here) is reversed, and as to them the cause is dismissed without prejudice to the rights of the Produce Company to proceed against them in a plenary suit. In all other respects, the trial court's judgment is affirmed.

In part reversed and dismissed, and in part affirmed.