
    
      No. 5906.
    S. J. Siddall et al. v. Thomas Goggan & Brother.
    1. Sequestration—Sureties.—When property sequestered has been replevied, the-sureties on the replevin bond are bound by a judgment entered on an agreement filed in the cause by their principal, that the debt “is just,” and that judgment be entered for the specified value of the property sequestered. Such sureties not being parties to the suit, can> not, by seeking to make themselves parties defendant, prevent judgment being rendered on such an agreement, unless they allege that the-agreement that the debt “is just” was untrue, or that their principal has-some legal or equitable defense to the action, a failure to present which, will opérate injustice to them.
    2. Same.—Such sureties have the right to absolve themselves from liability under the judgment by delivering the property sequestered within ten-days after judgment.
    Appeal from Bosque. Tried below before the Hon. J. M. Hall.
    This suit was brought by the appellees, Thos. Goggan & Bro., against H. M. Dillard to recover the value of a piano and rent for the same. The property was sequestered by the plaintiff. The appellants, S. J. Siddall and J. J. Lumpkin, became the sureties on the replevy bond filed by Dillard and sought to make themselves parties defendant to the suit, setting up that an agreement between plaintiff’s attorney and Dillard had been filed in the cause, by which it was agreed that all answers of Dillard should be withdrawn, “that the plaintiff’s cause of action is just,” and that they take judgment against Dillard for three hundred and fifty dollars or the value of the property; that they were not parties to the agreement; that Dillard promised them to defend the suit; that they should not be bound by the confession of judgment; that the defendant had no right in law or equity to “collude” with plaintiffs and their attorney; that Dillard was insolvent, and that the" agreement was wickedly, unlawfully and fraudulently entered into.
    There was no denial of the justness of the plaintiff’s claim nor any specific allegation setting up a valid defense against it. Exceptions to the plea of the sureties were sustained, and it was stricken out on the ground that it did not deny the justness of plaintiff’s claim or set up any defense to the same permitted by law. The sureties excepted and afterward moved to set aside and reform the judgment, which motion being overruled, they again excepted. There were other allegations in the plea filed by the sureties not deemed necessary to mention, in view of the opinion. The charge with reference to the attorney of Dillard urged by the sureties will be apparent from the opinion.
    The court having stricken out the answer of said sureties, and "they not having amended, and defendant Dillard having withdrawn his defenses and consented to plaintiffs taking judgment against him, the court concludes, as a matter of law, that plaintiffs were entitled to a judgment against defendant Dillard as per agreement, and against the sureties on the replevin bond, .as per the evidence adduced on the trial and shown by the records and pleadings in the case.
    Appellants’ assignment of error contains six grounds:
    1. The court erred in striking out and holding for naught the •answer of appellants, filed August 20, 1885, because the same showed fraud and collusion between plaintiffs and defendant Dillard, in attempting to make said Lumpkin and Siddall pay said three hundred and fifty dollars.
    2. The court erred in overruling appellant’s exceptions filed 20, 1885, to the agreement of judgment, filed August 8>.
    3. The court erred in rendering judgment against appellants Ifor three hundred and fifty dollars, there being no evidence as-!to the value of the property.
    4. Because the judgment was rendered against appellants on said agreement when they were not parties to the same.
    5. Because the court erred in not allowing appellants the-right to apply for a continuance.
    6. The judgment is contrary to law and justice, and is without any evidence to support it.
    To the ruling complained of in the fifth, ground of the assignment of errors, appellants saved a proper bill of exceptions.
    
      S. H. Lumpkin, for appellants,
    on his proposition that a contract of suretyship imports entire good faith and confidence between the parties in regard to the whole transaction, and any concealment of material facts, or any express or implied misrepresentation of such facts, or any undue advantage taken of a surety by the creditor, either by surprise or by witholding proper information, will furnish a sufficient ground to invalidate-the contract; and if any stipulations are made between the creditor and debtor, which are not communicative to the surety, and are inconsistent with the terms of his contract, or are prejudicial to his interest, they will operate as a virtual discharge of the surety from the obligation of his contract, cited Giraud v. Morton, 6 Texas Law Review, pages 44, 45, and authorities cited;. Mayhew v. Boyd, 5 Maryland, 102; 59 American Decisions, page 103, and note ; Craig v. Cox, 2 Bibb, page 309; 5 American Decisions, page 609; Sneed, Executor, v. White, 20 American Decisions, page 176, and note; Story’s Equity, paragraph 324.
    That the court should have overruled appellees’ general exceptions and sustained appellants’ special exceptions to the confession of judgment and expunged appellants’ names therefrom and rendered judgment against H. M. Dillard alone on the agreement, they cited 6 Texas Law Review, page 44; 5 Law Review, page 752; St. Johns v. Holmes, 32 American Decisions, page 601, and note; Bitzer v. Shunk, 37 American Decisions, page 470, and note; Elliot v. Holbrook, 33 Alabama, page 665.
    
      A. L. Lockett, for appellee,
    on his proposition that Dillard’s agreement that judgment should go against appellants, who-were sureties on his replevin bond, did not hurt appellants, as such judgment against them was a legal incident to that against Dillard, cited Revised Statutes, article 4501.
   Acker, Judge.

The record discloses no objection to the añida-' vit, bond or writ of sequestration, and we confine our conclusions to the questions raised by the assignment of errors. The first and second grounds of error assigned relate to the ruling of the court in striking out the exceptions and answers of appellants to the “agreement and confession of judgment” entered into by appellees and Dillard, and which had been filed in the case on the eighth day of August, 1885. It is insisted by appellants that their answers showed “fraud and collusion” between appellees and Dillard, the defendant in the writ of sequestration and the principal in the replevy bond upon which appellants are sureties. From the answer it is evident that the charge of fraud and collusion is predicated upon the fact that after defendant Dillard had entered into the replevy bond for the piano, stool and cover, with appellants as sureties thereon, he and appellees, acting by their attorney, entered into an agreement in writing to the effect, that appellee’s demand is just, that defendant Dillard withdraws all his defenses, and consents that judgment be entered on his replevy bond, and that appellees pay all costs. It is alleged in the answer that the day after the writ of sequestration was levied, Dillard sold and delivered the piano to S. H. Lumpkin in payment for his professional services in defending this suit, and that the agreement between appellees and Dillard was entered into secretly and without their knowledge or consent, and was made with intent upon the part of appellees and Dillard to extort from appellants three hundred and fifty dollars, or to compel S. H. Lumpkin, attorney for Dillard and attorney for appellants, to deliver up the piano.

It is not alleged in appellants’ answer that the admission of Dillard that “plaintiffs’ demand is just” is untrue, nor is it alleged in their answer that Dillard had any defense, legal or equitable, to appellees’ suit.

Appellants had the right to absolve themselves from all liability in the premises by delivering the property to the sheriff of the county, at any time within ten days after rendition of the judgment. (Rev. Stats., art. 4502.) We conclude that the answer of appellants contained no allegations that entitled them to be relieved from the consequences of the agreement and confession of judgment entered into by their principal, Dillard, and that the court did not err in striking out the answer.

Report adopted October 25, 1887.

Defendant Dillard having withdrawn all answers and defenses and confessed judgment in favor of appellees, and appellants’ ¡answer having been stricken out, the court did not err in rendering judgment for three hundred and fifty dollars, the value of the property as fixed in the replevy bond.

The record does not sustain the fourth ground of error assigned. The conclusions of fact and law filed by the court show that the judgment was rendered against Dillard on his withdrawal of all defenses and confession of judgment, and against appellants on the replevy bond, their answer having been stricken out, and they not having filed any other pleading. There was no request for other conclusions, nor was there exception to those found.

It appears from the explanation of the trial judge, endorsed upon appellants’ bill of exception taken to the refusal of the court to give time to make application for continuance, that when the case was called for trial plaintiffs’ attorney announced ready for trial, defendant Dillard was not present, and appellants announced not ready. Attorney for appellees informed the court that he had filed exceptions to appellants’ answer, and asked permission to present them, which -iyas granted. The court sustained the exceptions and struck out the answer, and appellants did not take leave to amend. Defendant Dillard having withdrawn all his pleadings, there was nothing to support an application for continuance. (Rules Dist. Court, No. 25.) The sixth ground of error assigned is too general to require consideration. (Supreme Court Rules, No. 26.)

We find no error in the record of which appellants can complain, and it is our opinion that the judgment. of the district court should be affirmed.

Affirmed.  