Harrell v. Mann

Dinkelspiel; J.

This suit is based on a lease, together with two rent notes of $75.00 each, being rent for months of January and February 1933, with a lien and privilege upon all the furniture and property contained in the leased premises'; an affidavit follows the petition claiming the «¡mount due, together with ten per cent attorney's fees, and that the petitioner fears that defendant will remove the furniture on Which Bhe has a, lien and privilege, out of the premises and thereby destroy the privilege.

The answer substantially admits the lease, the. rent, but. dlaims that plaintiff had no right to insist upon the rent being paid, because in a prior .suit in the Civ.il District Court between these same parties, which was an- eviction suit, the Judge in that suit in a judgment orders that through an agreement between the parties, the judgment in .that case, which is #1-40,489 of the docket of the Civil District Court, shall not go into eft-feet until February 38th, 1933 and. pleads that judgment in bar,.' because the proceedings in this case was entered a' day prior to the date named by the Judge; henoe was premature; and further in s reconvertional demand claims the sum of $300.00 as damages, baoe.use his good name had been injured, and that he suffered great mental, anguish and humiliation and that h.is business was interrupted and his home -life disturbed and broker up»

On the trial had in this case; due proof, was made of che fact that the rent of January 1933, $75.00 was past 'due dad the rent of February would not be due. .aco ording to the note in suit until the first of March. The lease amongst other things contained the provision; "That when any month's rent was due. end unpaid, that the whole amount of future rents became due1"-; and under this provision it is evident that the January rent note beo&ne having been due and unpaid, the February rerit/lHH(Xdue at the t'ifte Of the issuance of the writ of provisional seizure-» It- was further shown that defendant was on the eve and had partially removed hie furniture from the leased premises, when seeing the agent of the plaintiff, who was present at the time of the attempted removal, the furniture was taken from the wagon hack into the leased premises; and there was no denial of this fact hy the defendant on .the stand, and this in our opinion, together with other parts of this record, unnecessary to he mentioned, gave under the Codal provisions of our Statutes, the right of maintaining the writ' of provisional seizure.

The Judge of the Court a quo in rendering judgment in this case rendered judgment fox. the sum of |150»00, together with legal interest from February 28th, 1922 until paid, and ten p'sr oent of said principal and interest as attorney's fees, and he further ordered, that- the writ of provisional seizure be dismissed, and he further ordered that the reoonventional demand also be dismissed at the oo'St of plaintiff in reconvention»

In this judgment the Court erred»

For the reasons assigned, it is ordered, adjddged and deoreed that the judgment of -the Court aquo in so far as it rendered a judgment in favor of plaintiff, -Sire. Francis A, Harrell, an.d agáinat Percy S. Kama, in the sum of |150»00, with legal interest frisa February 28th, 1922, unt.il paid, and ten per oent of principal and interest as attorney’s fees, be affirmed; and in so far. as said judgment dismissed the writ of provisional seizure, ha annulled, reversed and 'set aside, and that there now be judgment in favor of plaintiff;' Mrs, Francis A. Harrell, and against the defendant, Percy S^'$6¿nn, ..and J. T. Prowell, Surety on the release bond -in. this oase, for the full sum of 8150*00 with legal interest thereon fxs from February 28th. 1922, and ten per cent attorney’s, fees on.'-prinolpax and interest, .and that the writ of provisional seizure be maintained.

And it is. f urther ordered that the J* judgment dismissing the y.ecpoventlonal demand of defendant be jiff irmed.

And it is further ordered that the defendant Peroy A. Mann, and J. T, Prowell,, surety on release bond, be condemned to pay costs of both Courts.

-Judgment aff irmed in part and reversed in part.