Casey & Swasey v. Chaytor

RAINEY, Associate Justice. Conclusions of Fact. — Casey & Swasey, appellants, owned a judgment against J. J. Yost. Execution was issued by virtue thereof, placed in the hands of B. F. Hargett, who levied same On property owned by and in the possession of D. O. Chaytor. An indemnity bond was executed by Casey & Swasey, with A. B. Smith and E. E. Chase as sureties, in favor of said B. F. Hargett, sheriff. The prop *386 erty was sold by virtue of said levy, and D. O. Chaytor became the purchaser for the sum of $930, and the property was turned over to him. Chaytor then brought suit for the conversion of the property against Casey & Swasey and B. F. Hargett, and Hargett vouched in the sureties on the bond of indemnity. The value of the property was $2000, and judgment was rendered for that amount in favor of Chaytor. The trial judge charged the jury the measure of damages to be the value of the goods seized at the time of seizing, with interest. Appellants asked a special charge, to the effect that the measure of damages in this case “would be the amount paid by plaintiff (Chaytor) for said stock of goods, with interest at 8 per cent per annum from the date when said stock of goods was seized and levied upon by said B. F. Hargett, sheriff.” The refusal to give the special charge as asked is the sole assignment of error, and appellants acknowledge in their brief that they knew of the decision of the Supreme Court in Schoolher v. Hutchins, 66 Texas, 331, where the exact doctrine as charged by the court is laid down; and we conclude that said appeal was taken for delay. Appellees suggest delay, and ask an affirmance of the judgment with damages. Conclusions of Law. — Where property is wrongfully seized and taken from the owner by the sheriff by virtue of an execution, the owner can recover for the value of same at the time of the seizure; and it is immaterial, as between the judgment creditor and the owner of the property, that the owner bought the property at the sheriff’s sale. The action of Chaytor being based upon the conversion of his property, he is entitled to recover the value of same at the time it was taken, with interest. Schoolher v. Hutchins, 66 Texas, 331; Hart & Co. v. Blum, 76 Texas, 113. The principle here announced, we take it, is fully settled as the law of this State, and the same was known to appellants when they appealed. It seems clear to a majority of this court that the appeal was taken for delay. We think the facts justify us in assessing 10 per cent damages for delay. The judgment of the court below is affirmed, with 10 per cent damages. Affirmed with damages. Delivered November 18, 1893.