Dahoney v. Allison & Moore

A. S. Walker, J. The demurrer puts in question the right of plaintiffs to satisfaction of their judgment out of the. excess of moneys received by the trustee on his sale under ;the prior lien, and whether defendant is shown to be liable in the action. . ' The right to levy an execution or attachment upon mortgaged property is recognized by our courts. Gillian v. Henderson, 12 Tex., 47; Wooten v. Wheeler, 22 Tex., 338; Belt v. Raguet, 27 Tex., 482; Sayles’ Treat., § 566. The levy was made subject to the prior incumbrance by the trust deed, and did not in fact prevent the sale by the trustee. ■ Upon the sale, the surplus, after the satisfaction of the mortgage and the attachment lien, followed the funds. Merkley v. Langley, 2 Otto, 142; Olcott v. Bynam, 17 Wall., 63; Purdy v. Doyle, 1 Paige, 557; Burchard v. Philips, 11 Paige, 70. The property, as alleged, was left in the possession of the constable, who subsequently was present at and assisted in the trust sale, on which was realized an excess, subject to the attachment lien. The rights of plaintiffs in this fund were denied. .The petition alleges joint acts of the trustee, Dahoney, and of the constable, Spears, in preventing plaintiffs from obtaining such [116] satisfaction; the acts of Spears being also a breach of official duty for which his sureties were bound. [Opinion delivered April 26, 1880.] There was therefore alleged a right, its invasion by the joint and wrongful acts of the defendants, and consequent additional and necessary damages. These allegations show a cause of action against appellant, and the demurrer was properly overruled. 2. The plea of misjoinder does not appear to have been called to the attention of the court below save in the motion in arrest of judgment. This motion required an inspection of the record to see if it was so defective as not to support the judgment as rendered. Dennison v. League, 16 Tex., 405. The judgment having been rendered against plaintiffs for all costs incurred by the suit as against Spears and his sureties, and the litigation thus ending without injury as to Dahoney, the sole question was as on general demurrer and as against Dahoney. The decision of the general demurrer is decisive of the motion in arrest as urged. 3. .The case was by appeal in the district court before the adoption of the constitution of 1876. It was retained in the district court, while the actual recovery was upon a claim, when suit was brought, of less than $500; yet there was a claim for $200 additional as damages, the natural result of the alleged wrongful acts of the defendants. This claim was part of the matter in controversy, and increased the subject of litigation to an amount within the jurisdiction of the district court. The other matters assigned, and which are discussed in the briefs of the parties, are applicable to matters that can only be presented upon a statement of facts. The merits of the defense are not before us in the condition of the record. The matters discussed are not grounds for reversal, and the judgment should be affirmed. Affirmed.