DocketNumber: No. 1060.
Citation Numbers: 40 S.W.2d 871
Judges: BARCUS, J.
Filed Date: 5/28/1931
Status: Precedential
Modified Date: 1/12/2023
Defendant in error Auto Finance Company, a partnership, hereinafter called Finance Company, instituted this suit against E. M, Rabon on a note executed by him and securea by a chattel mortgage on "one Ford Cabriolet model, Motor No. A-2131192, together with spare tire and tubes and all equipment." The Finance Company filed their affidavit for writ of sequestration describing the property which they desired sequestrated as one Ford cabriolet model, motor No. A-2131192, and alleged said automobile was in Dallas county. The defendant in the trial court, E. M. Rabon, executed his replevy bond in which he described the property replevied as "one new Ford Cabriolet model, motor No. A-21331192." Said replevy bond was signed by H. H. Tompkins and D. L. Irwin as sureties. The cause was tried to the court, and resulted in judgment being entered for the Finance Company against E. M. Rabon for $648.73 and all costs of court, together with a foreclosure of the chattel mortgage lien on "one Ford Cabriolet model, motor No. A-2131192 and all equipment." The court found the value of the property on which the mortgage was foreclosed, being said Ford car and all equipment, to be $650, and recited in his judgment that *Page 872 said property had been replevied by E. M. Rabon, and rendered judgment against E. M. Rabon and the two sureties named for $648.73. D. L. Irwin, one of the sureties on the replevy bond, alone prosecutes this appeal.
Plaintiff in error contends that the judgment of the trial court is erroneous, in that it rendered judgment against the sureties on the replevy bond for the value of the "Ford Cabriolet model, motor No. A-2131192 and all equipment," when the record shows affirmatively that only the automobile was sequestrated and replevied. He further contends that the judgment is erroneous, in that it did not find the value of the automobile separate and distinct from the equipment, but only found the combined value of the automobile and all equipment. We sustain these propositions. Article
This question was directly involved in the case of Old Colony Ins. Co. v. Kolmer,
In the case of Shapiro v. Security Ins. Co.,
In the case at bar, the Finance Company, when it took the mortgage in question, evidently intended to have security other than just the automobile when it described the property as "an automobile, a spare tire and tube and all equipment." Clearly, the mortgage would cover any and all equipment that went with or belonged to the automobile in question. The kind and value of the equipment of an automobile, of course, depends upon its use and its user. Some car owners have their cars equipped with trunks in which to carry the luggage, and some cars are equipped with a radio. No effort was made to definitely describe the term "all equipment" as used in the mortgage. It was evidently intended by said expression to embrace all equipment on said car. When the Finance Company filed its affidavit for sequestration, it only sequestrated the automobile and it alone was replevied, and the bondsmen were not liable for anything except the automobile or its value. The trial court foreclosed the mortgage lien, not only upon the automobile, but also upon "all equipment," and found the value of the "automobile and all equipment" as a whole, and did not find the value of the automobile which had been replevied.
Plaintiff in error contends that the judgment of the trial court is erroneous, in that it does not specifically provide that same may be satisfied in so far as the sureties on the replevy bond are concerned by the automobile being delivered to the proper officer within ten days after final judgment. Our courts have uniformly held that, while it is proper for this provision to be placed in the judgment, it is not necessary, since the defendant and his sureties on the replevy bond have that right by force of the statute and independent of any recitation that may *Page 873
be contained in the judgment. Continental Gin Co. v. Thorndale Mercantile Co. (Tex.Com.App.)
The trial court having failed to fix the value of the automobile that was replevied, separate and distinct from the other property on which it foreclosed the mortgage, necessitates a reversal as to this portion of the judgment. E. M. Rabon, the original defendant, not having appealed, that portion of the judgment which renders a personal judgment against him, together with a foreclosure of the chattel mortgage, is not disturbed. That portion of the judgment which renders a personal judgment against D. L. Irwin and H. H. Tompkins, the sureties on the replevy bond, is reversed and remanded.
Our courts now uniformly hold that, where the judgment is not severable, or where it adversely affects the rights of the party not appealing, or where justice demands, the appellate court may, in reversing a judgment for a party who appeals, reverse same as to those who do not appeal from the judgment of the trial court. Leonard v. Prater (Tex.Com.App.)
In Leonard v. Prater, supra, judgment was rendered in the trial court against a number of parties, jointly and severally, for a debt and for the cancellation of a lien on certain land. Some of the defendants appealed, and others did not. Judge Short, in writing the opinion reversing the case as against all of the defendants, stated: "The original defendants in this case were jointly sued and were held to be jointly liable in the judgment rendered in the trial court; hence we are under the necessity to treat the judgment appealed from as an entirety. Where a reversal is required as to one party, it will reverse the judgment as a whole. Article 2211, R.S. 1925; Ferguson v. Dickinson (Tex.Civ.App.)
Unquestionably in this case Tompkins and Irwin were sued jointly as sureties on the replevy bond, and were by the judgment of the trial court held to be jointly liable thereon. It would be manifestly unjust to reverse the judgment as to one of the sureties and affirm the same as to the others.
The motion for rehearing is overruled.
Thompson v. Kelley , 100 Tex. 536 ( 1907 )
Reeves and Lester v. McCracken , 103 Tex. 416 ( 1910 )
Reliable Iron Works v. First State Bank , 241 S.W. 592 ( 1922 )
Thomas v. Basden Carrell , 4 S.W.2d 336 ( 1928 )
Bishop v. Japhet , 171 S.W. 499 ( 1914 )
Hill v. Armstrong Mfg. Co. , 275 S.W. 1086 ( 1925 )
Mergenthaler Linotype v. McClure , 9 S.W.2d 198 ( 1928 )
Scott v. G. W. Waldrop Co. , 8 S.W.2d 552 ( 1928 )
Lipshitz v. Lindsay Nat. Bank , 33 S.W.2d 874 ( 1930 )
Southwestern Telegraph Telephone v. Long , 183 S.W. 421 ( 1915 )