Johnson v. Bingham

GERMAN, P. J. On November 19, 1924, on our recommendation, tbe judgment in this case was reversed and remanded, in order that it might be determined whether the defendants were jointly liable for rentals, or individually liable; it being intended that the judgment as to the amount recovered for rents should not be disturbed (265 S. W. 884). Defendant in error, Bing-ham, has filed motion for rehearing, calling our attention for the first time directly to the fact that judgment for rents was rendered against John B. Warren and Amanda Whitfield Laury upon a replevy bond, which provided that they should be jointly and severally liable for all rents. We find that on March 31, 1919, John B. Warren and Amanda Whitfield, as principals, and the United States Fidelity & Guaranty Company, as surety, executed a replevy bond in favor of George H. Bingham in the sum of $10,000, which, among other things, after describing the land replevied, provided “that we and each of us will pay the value of the rents of the same in case we or either of us shall be condemned so to do.” The judgment recites that, after return of the verdict, plaintiff, Bingham, made motion to have judgment entered against all of the defendants and the United States Fidelity & Guaranty Company, surety on the replevy bond for the aggregate amount of rents found to b@ due. Thereupon the court entered judgment against all of the defendants and the - surety in accordance with said motion. Article 7106 of our statutes provides that where replevy bond has been given after sequestration, “in case the suit is decided against the defendant final judgment shall be entered against all the obligors in such bond, jointly and severally, for the value of the property replevied, and the value of the fruits, hire, revenue or rent thereof, as the case may be.” We now think that under the provisions of the replevy bond and the statute we have no discretion in the matter, and the judgment of the trial court as to rentals should be affirmed as to John B. Warren and Amanda Whitfield Laury. While Amanda was married at the time of the trial, we do not, find in the record the date of her marriage. The bond was signed Amanda Whitfield. The trial court must necessarily have found, that she married Laury after the execution of the bond. The rentals allowed were from and after March 22, 1919, for the years 1919 and 1920. During almost this- entire period the land was in the possession of Warren and Amanda Whitfield under and by virtue of their replevy bond. AYe have therefore concluded that the other defendants are not liable for rentals. We therefore recommend that the judgment on motion for rehearing of November 19, 1924, be set aside, and that the judgment of the trial court and of the Court of Civil Appeals as to John B. Warren, and Amanda Whitfield Laury be, In all things affirmed; that the judgment as to title to land be affirmed as to all other defendants,' but as to rentals judgment be here entered that plaintiff take nothing of the defendants other than John B. Warren and Amanda Whitfield Laury. CURETON, C. J. Judgments heretofore entered herein are set aside, and judgments of the district court and Court of Civil Appeals as against John B. Warren and Amanda Whitfield Laury are affirmed; and judgments as to title to land affirmed against all defendants; but the judgments as to rentals as against all defendants except Warren and Laury are reversed, and judgment rendered as recommehded by the Commission of Appeals.