
    GRAYSON COUNTY NAT. BANK v. WANDELOHR et al.
    (Supreme Court of Texas.
    May 22, 1912.)
    1. Husband and Wife (§ .138) — Husband’s Acts — Liability of Wife.
    A wife is not liable personally for rents collected by her husband after sequestration of land which had been her separate property.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 524-537; Dec. Dig. § 138.]
    2. Judgment (§ 747) — Conclusiveness.
    Where defendant and her husband sued a bank to set aside a deed of trust and a deed thereunder to land which had been defendant’s separate property, and the bank reconvened and sued out a writ of sequestration, and defendant and her husband executed a replevy bond, a judgment against them for the land and against the husband and the sureties for rent collected, but discharging defendant from liability on the bond, bars an action against defendant on the rep.levy bond.
    [Ed. Note. — Eor other eases, see Judgment, Cent. Dig.'§§ 1053, 1284-1290; Dec. Dig. § 747.]
    3. Judgment (§ 564) — Bak—Finality.
    A judgment that sureties on a replevy bond go hence without day, on a theory that they were discharged by the discharge of one of the principals, is a final judgment.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 1015-1017; Dec. Dig. § 504.]
    4. Judgment (§ 540) — Bar—Nature of Eok-MEE RECOVERY.
    A final judgment by a court having jurisdiction binds the parties, and bars subsequent action between the same parties on the material issues involved and determined.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 1079; Dec. Dig. § 540.]
    5. Judgment (§ 589) —Bak — Form of Action.
    Judgment 'in favor of the sureties on a replevy bond in a .summary proceeding against them bars subsequent action against them on the bond; a party not being able to escape the bar of the judgment against him by bringing a new suit on. the same cause of action in a different form of action or proceeding.
    [Ed. Note. — Eor other cases, see Judgment; Cent. Dig. §§ 1062-1065, 1100, 1101; Dec. Dig. § 589.]
    Error from Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by the Gra'yson County National Bank against Adelaide Wandelohr and another. Prom a judgment of the Court of Civil Appeals affirming judgment for defendants, plaintiff brings error.
    Affirmed.
    See, also, 102 Tex. 20, 108 S. W. 1154, 112 S. W. 1046, 131 S. W. 1168.
    Wm. A. Vinson and A. L. Beaty, both of Houston, for plaintiff in error. E. C. McLean, of Sherman, and Don A. Bliss, of San Antonio, for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

Adelaide Wandelohr, joined by her husband, C. B. Wandelohr, instituted suit in the district court of Grayson county against the Grayson County National Bank and others not necessary to be further considered to set aside a deed of trust and deed made to the bank under that trust deed which conveyed certain lots in the city of Sherman of which Mrs. Wandelohr and' her husband had 'possession; the lots being the separate property of Mrs. Wandelohr. The bank reconvened, claiming title to the lots, and sued out a writ of sequestration which was executed by the sheriff, taking possession of the lots. Mrs. Wandelohr and her husband executed a replevy bond with Paul Waples and Jot Gunter as sureties. Wande-lohr was insolvent. Wandelohr collected $1,800 rent from the property after the sequestration bond was executed. Upon a trial of the case in the district court before a jury their verdict was for the bank against Wandelohr and wife for the land and also for $1,800 rent collected by the husband after the bond was given. The attorney of the bank drafted a form in which judgment was given against Wandelohr and wife for the land and against Wandelohr and the sureties, Paul Waples and Jot Gunter, for $1,800, rent collected, but no judgment was entered against Mrs. Wandelohr for the rent. The sureties and Wandelohr removed the case by writ of error to the Court of Civil Appeals, and, the judgment being affirmed, writ of error from that court to this was sued out and prosecuted. The judgment as to Mrs. Wandelohr had been affirmed on certificate before the writ of error by all the parties was prosecuted to the Court of Civil Appeals, and, upon a hearing in this court, the judgments of the district court and Court of Civil Appeals against the sureties were reversed, and judgment was entered that the sureties go hence without day, but affirmed the judgment in all other respects. Jot Gunter and Wandelohr having died, the bank instituted this suit against Mrs. Wande-lohr and Paul Waples, the surviving surety, upon the replevy bond to recover the rents collected during the litigation, and that which had accrued since the judgment was rendered. The case was tried before the judge without a jury, who gave judgment against the plaintiff, holding that Mrs. Wan-delohr and Paul Waples were neither liable. The Court of Civil Appeals affirmed the judgment.

There is no allegation in the petition charging Mrs. Wandelohr with having collected rent on the property while in her possession after the death of her husband. She cannot be held liable personally for the sums collected by her husband, although the property was owned in her separate right She is charged as one of the principals in the replevy bond. The bank recovered a judgment against her and her husband for the lot and against Wandelohr and the sureties for the rent, but discharged Mrs. Wandelohr from liability on the bond, which judgment is now in force, and is in fact the foundation of this suit. It is beyond dispute that the judgment of the district court is a bar to this action against her on the replevy bond.

Waples pleaded in bar to this action the judgment of this court rendered in Wandelohr v. Grayson County National Bank; 102 Tex. 20, 108 S. W. 1154, 112 S. W. 1046, which was the case in which the replevy bond was executed, which had been removed to the Supreme Court on writ of error. Waples and Gunter, the sureties, claimed that they were discharged by - the discharge of Mrs. Wandelohr, and this court held with that contention, and entered judgment that the sureties go hence without day. That is a final judgment in form and substance. What can I say that would make plainer the character and effect of that judgment? That a final judgment by a court, having jurisdiction, binds the parties and bars subsequent action between the same parties upon the material issues involved and determined, will be conceded, requiring of us neither authority nor comment. As conclusive of the character of the judgment we quote from the opinion of Judge Williams: “Here, under a statute requiring a judgment against all the obligors liable in the bond, and' where all are parties, judgment is taken against one of the principals only, which has the effect of adjudicating that the other is not liable. This was an error against the sureties as well as against the obligee in the bond. The latter has caused the judgment to be affirmed as between it and Mrs. Wandelohr, while the former, unaffected by that affirmance, are now complaining of the error. Following Sartain v. Hamilton, 14 Tex. 348, we must reverse the judgment against the sureties, and adjudge that the defendant in error, the bank, take nothing against them. Otherwise the judgment is affirmed.”

Counsel for plaintiff .in error claim that the judgment relied upon was rendered in a summary proceeding against the sureties, and does not bar an action upon the bond. The rule is stated thus: “A party cannot escape the bar of a judgment against him by bringing a new suit on the same cause of action but in a different form of action or proceeding.” 23 Cyc. 1167, and note 52. We cite a few of the cases from the note: Betts v. Starr, 5 Conn. 550, 13 Am. Dec. 94; Cist v. Zeigler, 16 Serg. & R. (Pa.) 282, 16 Am. Dec. 573; Birdsey v. Schaffer (Civ. App.) 57 S. W. 987; Stuart v. Tennison Bros., 21 Tex. Civ. App. 530, 53 S. W. 83. Counsel have not cited- authority to sustain their position, and we have found none.

This court held in the case cited that the discharge of Mrs. Wandelohr released the sureties from liability on the bond and emphasized that conclusion by refusing to remand the case, because no right of action in favor of the bank remained against the sureties.

We find no error in the proceedings of the district court nor the Court of Civil Appeals. It is therefore ordered that the judgments of those courts be affirmed.  