Leach v. Stone , 1924 Tex. App. LEXIS 958 ( 1924 )

So far as necessary to state, this suit was instituted by John H. Stone against H. F. Leach and George Cockburn, upon allegations to the effect that the defendants had converted certain tools and equipment belonging to the plaintiff, of the alleged value of $675.50, for which he sought to recover the sum of $5,000 actual damages and $5,000 exemplary damages for alleged malicious prosecution and false imprisonment. It was claimed that the tools and equipment alleged to have been converted were used by the plaintiff in his business in conducting a meat market, and that the defendant Cockburn, without the knowledge and consent of the defendant Leach, had maliciously filed a complaint charging plaintiff with theft of property of the value of more than $50, and thereunder caused his arrest and imprisonment.

Defendants Leach and Cockburn each filed in proper time and form separate pleas of privilege to be sued in Parker county, the county of their residence. The plaintiff filed a controverting affidavit to each of said pleas. Upon a hearing the court, upon evidence submitted by the several parties, overruled said pleas of privilege, to which action the defendants excepted and have duly prosecuted this appeal.

It is undisputed that each of the defendants are resident citizens of Parker county, Tex.; plaintiff being a resident of Tarrant county. The evidence submitted upon the hearing of the pleas of privilege is, in substance, to the effect that plaintiff owned and possessed certain tools and equipment used in his butcher shop which had been levied upon in the suit of appellant Leach in Parker county. At the time of the levy the goods were situated in certain premises in the town of Weatherford, Parker county; plaintiff at that particular time not being engaged in his regular business of conducting a meat market. No question is raised as to the regularity of this levy. After the levy had been made, however, and on the day before the sale of the property was advertised to take place, the plaintiff came from Fort Worth to Weatherford and, without consent of the officer who made the levy and without the consent of Leach or of the person in whose charge the goods had been left by the sheriff for safe-keeping, took and loaded them in his car and brought them to Fort Worth. Defendant Cockburn, the deputy sheriff, the sheriff at the time being absent, filed a complaint against the plaintiff charging theft, which appears to form the basis of plaintiff's suit for malicious prosecution. He also sued out a warrant of arrest and presumably a search warrant and with the warrants came to Fort Worth and with the assistance of a Fort Worth officer went to the plaintif's residence where he found the goods levied upon, and forthwith took both plaintiff and the goods so levied upon back to Weatherford. It further appears that plaintiff was later indicted by the grand jury of Parker county, but that prosecution was, for some reason not disclosed, dismissed.

It further appears that besides the goods levied upon the plaintiff also had various articles, smaller and of less value than those levied upon, such as butcher knives, steels, butcher aprons, etc., which were found by the defendant Cockburn in Fort Worth, and that he also took possession of these smaller articles at the time he repossessed himself of the tools and equipment that had been levied upon, as stated. The value of these smaller articles is not very distinctly shown, but appear to have been of the probable value of $100.

There is no evidence whatever tending to show that defendant Leach induced, had knowledge of, or had anything to do with the act of the deputy sheriff in filing the complaint against plaintiff. It also appears that the deputy, at the time he repossessed himself of the attached goods, was without knowledge that the smaller articles appropriated by him had not been levied upon, the original levy in fact having been made by another.

Upon this state of the evidence we think it clear that the court erred in overruling the pleas of privilege. The sheriff of Parker county was in the lawful possession of the attached property, and it was not only his right but his duty to safely keep the same and have it forthcoming for disposition under further orders of the court. Appellee, therefore, was without right in depriving the officer of such possession. His taking of such property under the circumstances shown, if not theft as charged in the indictment therefor, was most certainly unlawful as was his continued possession thereafter. The fact that the property was exempt from forced sale, if it was so exempt, neither justifies nor excuses his unlawful taking and continued, adverse, and unlawful retention. The exempt character of the property, if any, could only be established by proper pleadings and proof in a court having jurisdiction — to hold otherwise is to set aside all law adopted by our people for the orderly and peaceful settlement of controversies between us and substitute therefor the will and force of the individual.

It follows that appellee is in no position to claim a conversion of the property originally levied upon by the sheriff of Parker county, for as to such property appellee not only had placed himself outside of the law's protection, but it was also the right and duty of appellant Cockburn, under lawful process, to seize and retake the property wherever found, and no crime or trespass within the meaning of the exception as to venue claimed can be founded on such recapture of property. If it be admitted, as is in effect insisted in behalf of appellee, that he had the right to take and return the articles in the box seized by Cockburn at the time he recaptured the property levied upon, nevertheless no trespass or conversion was committed such as the district court had jurisdiction to determine; there being no dispute as to the fact that such articles were of value less than $100. Moreover, as to this property there seems no dispute in the evidence tending to show that Cockburn found it mingled with the property that had been levied upon and was taken inadvertently and he testified that it was later returned to and accepted by appellee. At all events the damage, if any, was below the jurisdiction of the district court.

Nor can it be said that the district court of Tarrant county had jurisdiction over the defendants to determine the issues relating to the alleged malicious prosecution or false imprisonment. It was not alleged or shown in the evidence that the deputy sheriff, in executing the seizure and warrant of arrest in Tarrant county, and in transporting and imprisoning appellee, acted oppressively or otherwise than as usual in executing a process of court. He at the time was acting, so far as the evidence shows, under lawful process, which it was his duty to execute, and the wrong done by him, if any, was in the making of the affidavit upon which the process issued, and this affidavit was executed and filed in a proper court in Parker county, and it was there, if at any place, the wrongful acts upon which rest the cause of action for malicious prosecution or false imprisonment was committed, and the proper courts of that county therefore are the courts having lawful jurisdiction. In Hubbard v. Lord, 59 Tex. 384, it was expressly held that, when a prosecution is begun at the instance of an individual, the initial step is the affidavit upon which the warrant for arrest issues, and that hence, in a suit for malicious prosecution, the offense contemplated in the exception to article 1830, relied upon, is not the arrest but the making of the affidavit and causing the warrant to issue, and the county in which this is done determines the jurisdiction. It was further held in that case that under an order legally issued an officer can commit no trespass by executing it according to its command. To the same effect are the cases of Raleigh v. Cook, 60 Tex. 438, and Hilliard v. Wilson, 65 Tex. 286. It is true that appellee's petition alleged that the affidavit was made maliciously and with intent to harass and injure him, but the allegations of the petition cannot be accepted as proof of the fact, and the evidence in this case wholly fails to support such allegations. This is particularly true as to appellant Leach; there being no evidence whatever that he advised or was cognizant of the fact that the affidavit or complaint upon which the warrant of arrest and search warrant was issued had been made or even that the appellant thereunder made the seizure and arrest of appellee complained of.

We, accordingly, conclude that the order of the court below overruling the defendant's pleas of privilege should be reversed and set aside, and that judgment be now here rendered sustaining those pleas, with direction to the trial court to transfer the cause to the proper court of Parker county.

BUCK, J., not sitting.