E. L. Bruce Co. v. Hannon , 1926 Tex. App. LEXIS 863 ( 1926 )

Two questions are presented by the record and urged by the appellant as error. First: Did the district court have jurisdiction to entertain and try the proceedings in the special circumstances? The officer forthwith levied the original attachment writ at different times and places upon an amount of property as a whole sufficient to satisfy the writ. Each separate seizure was of an amount of property insufficient to raise the sum necessary to enforce the writ. The claimant promptly made claim, secured by bond, to the property seized at the different dates. Appellant insists that the two separate claims cannot be united in one action and the aggregate value of the property assessed by the officer considered for the purpose of making up the jurisdictional amount of the court; that in virtue of the assessed value of the property the first bond and claim are returnable to the justice court, and the second bond and claim are returnable to the county court. The statutory provisions (Rev.St. 1925) invoked as applicable to the question read:

"Art. 7406. Whenever any person shall claim property and shall duly make the oath and give the bond, if the writ under which the levy was made was issued by a justice of the peace or a court of the county where such levy was made, the officer receiving such oath and bond shall indorse on the writ that such claim has been made and oath and bond given, and by whom; and shall also indorse on such bond the value of the property as assessed by himself, and shall forthwith return such bond and oath to the proper court having jurisdiction to try such claim. * * *

"Art. 7407. If the writ under which such levy was made was issued by a justice of the peace or a court of another county than that in which such levy was made, then the officer receiving such oath and bond shall indorse on such bond the value of the property as assessed by himself, and shall forthwith return such bond and oath with a copy of the writ, to the justice or court of the county in which such levy was made having jurisdiction according to the value of the property as assessed by said officer.

"Art. 7408. The officer taking such bond shall also indorse on the original writ that such claim has been made and oath and bond given, stating by whom, the names of the sureties and to what justice or court the bond has been returned; and he shall forthwith return such original writ to the tribunal from which it issued.

"Art. 7409. Cases arising under this chapter shall be tried in courts having jurisdiction of the amount involved."

The foregoing provisions clearly fix the rule that the jurisdiction of justice, county, and district courts in trials of the right of property is to be determined by "the assessed value of the property" fixed by the levying officer. Cleveland v. Tufts, 7 S.W. 72, 69 Tex. 580; Leman v. Borden, 19 S.W. 160, 83 Tex. 620. The levying officer is required to indorse on "such bond" the valuation of the property levied on and to return "such bond" with the indorsement on it to the proper court. The jurisdictional amount is evidenced by this method of valuation. The words "such bond," as used, merely refer, and have no other significance than to express with distinctiveness, "the bond," such as is executed by the claimant. And the words "such bond" or "the bond" could and would include all bonds the claimant is authorized or required to give in the particular levy, whether it be one bond or two bonds. The words do not necessarily mean and refer to a single bond. It is apparent, then, that the aggregate valuation of all the property seized under the original writ can be regarded as governing the question of jurisdiction of the courts, whether evidenced by a single bond or several bonds given by the same claimant covering the levies made under the same original writ. There is no express or implied negative to that course. And a separate claim, secured by separate bond, with separate valuation by the officer, is not forbidden, expressly or impliedly, in the case of successive levies under the same original writ. The requirement of the levying officer "to forthwith return" both "such bond" and "the original writ" does not necessarily imply that only one bond can be taken, or that each bond, taken separately, would evidence and determine the jurisdictional amount of the court. "Forthwith" allows a reasonable time, and as used means only that the officer shall make due return, without unnecessary delay, according to the exigencies of each particular case. Such construction is in entire harmony with the statutory provisions considered all together. The statute requires an officer charged with the execution of a writ of attachment, and an execution too, to levy upon "so much of the property of the defendant as shall be sufficient to satisfy the demand of the plaintiff and the probable costs of the suit." Art. 282, R.S. But on occasions it might not be possible to find at one time and in the same place property sufficient to satisfy the exigencies of the writ. In such case several separate seizures are unavoidable. The officer must first levy upon the particular property first found, and must proceed to make such additional levies as may be necessary to enforce full payment of the writ. It is as much the duty of the officer to avoid making an inadequate levy as to avoid making an excessive levy. The first levy upon the property first found does not operate to satisfy the writ and deprive the officer of further power to act.

The rule is general that an officer, notwithstanding his prior levy, has at any time before the return day the power to make such further seizures as may be necessary to satisfy the plaintiff's debt and costs of suit. Of course, when the officer has levied upon personal property sufficient to satisfy the writ, his authority to make further levies may be assailed on the ground that the levy already made operates as a conditional satisfaction of the debt or judgment. By the claim statute a single bond is not required of the claimant under any and all circumstances; hence a separate claim, secured by bond, can be made by the claimant in case the levying officer, as he is authorized to do, makes separate seizures at different times under the same writ of attachment. The claimant is not forbidden to do so, and the officer is not forbidden to take the bond. It may be very necessary to a claimant, and highly prejudicial to refuse to allow him, to obtain a quick or immediate release of the property and possession thereof by claimant's oath and bond at the time of each seizure. An enforced delay might cause loss or damage to him in the use or enjoyment of the particular property. In effect the first claim, secured by bond, is only a partial claim, as is the first seizure only a partial seizure under the original writ of attachment. The two claims, secured by bond, as well as the two seizures under the writ, arise out of one and the same transaction, the levy of the same original attachment upon the property of the claimant. No reason is perceived why the aggregate valuation of the property should not be regarded as making up the jurisdictional amount of the court. The rights of the parties are wholly unaffected by such course, there are no undue complications arising to them, and the statute contains no express or implied negative. To otherwise hold would produce undue complications and oppressive litigation. The just inference is that it was not the intention of the Legislature to have double suits or multiplicity of suits between the same parties, both claiming in reality under a common right. Elser v. Graber, 6 S.W. 560, 69 Tex. 223. To construe the statute as insisted by appellant would bring about a result, not intended by the Legislature, of double suits and the restriction of the right to make successive levies under the same original writ. It is apparent that the present statutory provisions were not intended to operate in restriction of the right of the levying officer to make adequate levy under the writ. Yet it would effectually do so if the words "forthwith return" be given the force and meaning of "at once," or "immediately." A claim being made, secured by bond, under the first seizure, the attachment would at once, upon approval of the one bond, be due for return, and any right under it to the officer would legally cease to make further levy at a subsequent period. A second seizure, although two days afterwards, would be ineffectual because made at a time after the original writ was due for return. The requirement of "forthwith return" was, as concluded by the majority of this court, intended merely to hasten the return within a reasonable time, as authorized by the circumstances of each particular case.

The second question presented and urged pertains to the right of the appellant in the circumstances to maintain the claim proceedings; it being a foreign corporation without a permit to transact business in this state. The facts, as found by the court, are: That appellant, and not T. H. Lemastus, was the real purchaser of the growing timber on the land in evidence, and that T. H. Lemastus was not selling to appellant f. o. b. in cars Texarkana, Tex., the logs cut from the land, but that he was an agent or employee of appellant; that appellant "had moved its camping outfit into Texas and was hiring labor and cutting (into logs) its own timber." Upon such facts the court based the conclusion that appellant was amenable to the statute of this state concerning foreign corporations. Arts. 1529 to 1537, R.S. The judgment as entered in effect denies to appellant the right to enforce its claim to the logs it was entitled to, and requires appellant to return the logs to the levying officer, and, not having done so, to pay the value of the same. We must assume the facts found by the court to be correct. It is believed that the further facts, additional to the facts stated by the court, cannot be put aside, since they appear undisputed in the record. They show that what otherwise seems an intrastate transaction is legally a part of interstate commerce. It is shown that the parties acquired the trees growing on the land for immediate severance, intending to forward such timber by a common carrier direct from Texarkana, Tex., to appellant's mill in Memphis, Tenn., as soon as felled and cut into sizable logs. In keeping with that purpose T. H. Lemastus, for appellant, as the court found, began felling the trees, cutting them into sizable logs and delivering such logs at Texarkana, Tex., to the Missouri Pacific Railway Company for through shipment to its mill at Memphis, Tenn. Texarkana, Tex., was a few miles from the land on which the timber grew. The logs in suit had actually been delivered to and were in the possession of the said railway company for shipment when levied upon. Such course of dealing constitutes interstate commerce. The case is closely analogous in the facts, and altogether so in principle, to the case of Dahnke-Walker Co. v. Bondurant, 42 S. Ct. 106, 257 U.S. 282, 66 L. Ed. 239, and the cases therein cited. The purchase of the timber through T. H. Lemastus was as personalty, and not as realty. Carter v. Clark Boice Lumber Co. (Tex.Civ.App.) 149 S.W. 278; Houston Oil Co. v. Boykin, 206 S.W. 815,109 Tex. 276, Interstate commerce includes the purchase of the timber as personalty, intending it to be immediately transported, as much as it does the transportation to another state. Express Co. v. Iowa, 25 S. Ct. 182,196 U.S. 133, 49 L. Ed. 417. It is immaterial that appellant's own employees, as the court concluded, felled the timber, in order to effect its quick transportation, since the buying of the timber was incidental to the transportation. It was therefore error to dismiss the claim proceeding by appellant. Railway Company v. Davis, 54 S.W. 381, 55 S.W. 562,93 Tex. 378.

The other assignment, that this court should render judgment for appellant, we think, cannot be sustained, since the case was disposed of in the trial court only on the right of the appellant to resort to the courts of Texas for remedy. But it is intimated, if in another trial of the case it be correct, either as found by the court, that appellant was the purchaser of the timber and was cutting "its own timber," or that Lemastus, owner of the timber, had made delivery of the logs to the railway company for through shipment to appellant at Memphis, Tenn., then, as the owner of the logs, appellant would be entitled to claim the same, and a judgment should be entered in its favor on the claim to the property. The same would apply to the automobile and trailer.

The judgment is reversed, and the cause remanded generally for trial on the merits.