
    William Eichoff v. Thomas A. Tidball et al.
    (Case No. 5101.)
    1. Bond, pavee in — Damages — Intervenor — Attachment.— Where judgment was rendered in an attachment suit, ordering the sale of the goods seized under the writ, which directed the sheriff to retain a portion of the proceeds of sale in his hands to await the further judgment of the court, provided intervenors should, within a time specified, file a bond with the sheriff for a designated amount, conditioned that they would pay to the plaintiff in the suit all damages that he might sustain if they failed to show that he was not entitled thereto, held, that, though no person was designated as payee, a bond payable to the beneficiary under it was proper. Held, further:
    
    (1) That the fact that no consent of plaintiff to the order requiring the bond was shown could not affect its validity as a common law obligation. He must be construed as having been present in court when the order was made, and, making no objection thereto, must be regarded as ratifying it by defending the proceedings through which the intervenors sought to obtain possession of the money detained by the execution of the bond in the sheriff’s hands.
    
      (2) The intervenors had no right, without the execution of the bond, to have the money withheld until their claim could be determined.
    (3) The attachment lien having been foreclosed for plaintiff’s benefit, the bond given by intervener could not be attacked on the ground that it was the result of coercion.
    (4) This case clearly distinguished from Wooters v. Smith, 56 Tex., 199.
    (5) If the intervenor’s claim to the money was based on any reasonable claim of right, the only damages plaintiff could recover against him would be the loss naturally resulting to him from the loss of the use of the money while in the officer’s hands. This would be satisfied by a recovery of interest. Attorney’s fees would not be, in a legal sense, the natural results of the bond.
    Appeal from Tarrant. Tried below before the Hon. A. J. Hood.
    Wm. Eichoff brought this suit, charging in substance: That on the 22d of March, 1878, he recovered a judgment in the district court against one Henry Eichoff for $4,872.54, and for the foreclosure of his attachment lien on certain goods levied on; that after-wards, at the same term of court, on the 12th of April, at the instance of the appellees, Conrados, Logeman, Siler, Vonbrock, Meyer and Kerchner, who were intervenors in the suit of appellant v. Henry Eichoff, that judgment was by the court amended and reformed so that the following provision in substance was added thereto, to wit: That J. M. Henderson, sheriff of Tarrant county, be directed to retain in his hands the moneys arising from the sale of the property levied on under attachment, to await the further order of the court therein, provided intervenors, within thirty days after said sale, file with the sheriff a bond with good and sufficient securities in an amount equal to ten per cent, of the sum arising from the sale, conditioned that they would pay Wm. Eichoff all the damages he might sustain in case they failed to show that he was not entitled to receive to himself the moneys arising from the sale, and that on filing such bond they, the intervenors, be entitled to contest the right of said Wm. Eichoff to the money.
    That the intervenors, on the 8th of June, 1878, executed to the sheriff a bond for $300, conditioned as required in the reformed judgment, with the appellees, Tidball and Van Zandt, as securities, and afterwards, on September 25, 1878, appeared in court by their attorneys and contested the right of appellant to the moneys; and on that day the court made a final judgment, in substance adjudging that the intervenors take nothing by reason of their contest, and that said Wm. Eichoff have and receive to himself the whole of the money arising from the sale. That by occasion of the premises the appellees became liable to Wm. Eichoff to pay him his damages by him incurred by reason of the premises, to the extent of the bond. That by reason and occasion of said contest appellant sustained damage as follows: $150 attorney fees paid by him to defend his rights in the contest, and that the same was reasonable; $150 paid for his personal expenses in going from his home in Cairo and staying in Fort Worth attending court, and that the same was necessary and reasonable; $128.81 interest, at ten per cent., on $2,929.25, the amount arising from the sale of the property above mentioned, for the time it remained unemployed awaiting the contest, and $62.15, court cost paid by him. That the then county judge of Tarrant county was disqualified from trying said cause by reason of having been of counsel, wherefore this suit was brought in the district court, and praying for citation and for judgment for damages, costs, etc.
    The bond mentioned in the petition was attached to and made a part thereof, and was as follows:
    “Exhibit £A.’
    “Wm. Eichoff )
    “No. 1784. vs. >
    “ Henbt Eichoff. )
    “Whereas, an order of sale has been issued out of the district court of Tarrant county, Texas, in favor of the aforesaid plaintiff, and against the above named defendant, which order of sale enforced an attachment lien on the property therein described, and which order of sale was directed to the sheriff of Tarrant county, Texas, and by virtue of which said sheriff seized the property therein described, and which order óf sale was based upon a judgment of the district court aforesaid, in the above entitled cause; and said sheriff having fully complied with the law in making sale of personal property as under execution, exposed said property to public vendue, from day to day, until said property was all sold, on, to wit, the 13th day of April, A. D. 1878, which said property, at said sale, brought the sum of $2,929.25; and whereas said district court modified said judgment, allowing Conrades and Logeman, Lewis W. Siler, J. A'. Vonbrock, and F. Meyer & Co., to file a bond in the amount of ten per cent, of said sale, jointly or severally make and deliver to the sheriff of Tarrant county, Texas, within thirty days from said sale, allowing them, as intervenors, to contest the right of said William Eichoff to the proceeds of said sale:
    Now, therefore, we, J. C. Conrades and F. H. Logeman, composing the firm of Conrades & Logeman, Lewis W. Siler, composing the firm of the Furniture Company of Weston; J. A. Vonbrock and F. Meyer and John A. Kirchner, composing the firm of F. Meyer & Co., as principals, and T. A. Tidball and K. M. Van Zandt as sureties, acknowledge ourselves bound to pay to Win. Eichoff aforesaid the sum of $300, conditional that J. C. Conrades and F. II. Logeman, composing the firm of Conrades & Logeman; Lewis W. Siler, composing the firm of the Furniture Company of Weston; J. A. Vonbrock and F. Mayer, and John A. Iiirchner, composing the firm of F. Mayer & Co., will pay Win. Eichoff, plaintiff in the cause of Wm. Eichoff versus Henry Eichoff, Ho. 1784 on the docket of the district court of Tarrant county aforesaid, all the damages that he may sustain in case they, as intervenors in said cause, fail to show that said plaintiff, Wm. Eichoff, is not entitled to said money, the proceeds of said sale.
    “Witness our hands, this 8th day of June, A. D. 1878.
    “J. C. Conrades,
    “F. H. Log-eman,
    “By John Hanna, their Att’y in fact.
    “ Lewis W. Siler,
    “ J. A. VONBROCK,
    “ F. Mex'er,
    “John A. Kirohner,
    “By their Agent, J. J. Jarvis.
    “ K. M. Van Zandt,
    “Tiios. A. Tidball.
    “Bond received and approved this 8th day of June, 1878.
    “Joe. M. Henderson,
    “Sheriff T. O. T.”
    On the 8th of May, 1883, the appellees, Tidball & Van Zandt, filed their amended answer, pleading a general demurrer, and also various special exceptions, and general and special answers, unnecessary to set out.
    On the hearing the court sustained appellees’ general demurrer to appellant’s petition, and appellant declining to amend, his case was dismissed with costs.
    
      S. P. Greene, for appellant.
    No briefs on file for appellees.
   Willie, Chief Justice.—

The transcript does not disclose which of the grounds contained in the demurrer to the petition of ap pellant were sustained by the court below. Those relied upon here are: 1st. The instrument sued on is not one provided by our statutes ; and 2d. Cannot be enforced as a commop law bond.

It is said, also, that it is not made payable as directed by the order authorizing it, but this is not borne out by the record. The order does not name the sheriff as the party who is to be made obligee of the bond. It merely requires that it shall be filed with that officer, and no person having been designated as payee, and William Eichoff being the party for whose security the obligation was to be executed, it was quite proper to make it payable to him.

The instrument is, of course, not given in pursuance of any statute, and must be sustained, if at all, as a common law obligation. The objections raised to it as such are: 1st. That it is not shown that the plaintiff consented to the execution of the bond. 2d. That it was given to secure a right which the principal obligors were already entitled to enjoy, and hence w-as executed under coercion.

The consent of the plaintiff, if required, was sufficiently given when the order for the bond was entered up. He must have been present in court at the time, either in person or by attorney. It does not appear that he made any objection to the order or the bond at any subsequent period, but on the contrary ratified it by defending the proceedings prosecuted by the intervenors to get possession of the money stayed in the hands of the sheriff by reason of the execution of the bond.

Nor was the bond given to secure a right already possessed by the intervenors. It is true they had the right without bond to assert in a court of justice any claim held by them to the money in the hands of the sheriff, but they had no right to have the money withheld from the plaintiff till their claim could be determined. This would, in effect, be a seizure in advance of the property in controversy, and a detention of it from the person having the apparent ownership and present right of possession, and to deprive him of the use of it pending the controversy. The theory of the law is, that in such cases the defendant must be secured by bond at least against all such damages as will necessarily follow from a resort to so stringent a process.

The proceeding in this case was not dissimilar to one by injunction, and that writ cannot, unless, perhaps, in a few exceptional eases, be obtained, either under our statutes or according to the principles governing the chancery courts, without first securing the opposite party against loss and damage by a sufficient obligation.

In the present case, the money in the hands of the sheriff was the proceeds of property attached at the suit of the appellant. The attachment lien had been foreclosed for his benefit, and he was entitled to the proceeds of the property sold in part satisfaction of his debt. But for the order of court and the bond given in pursuance of it he would have received his money so soon as the property was sold. It was retained in the officer’s hands in pursuance of the order and bond for the benefit of the intervenors, and to the damage of the appellant. All this occurred at the instance and request of the intervenors, and in no sense, therefore, can the bond be said to have been' extorted from them by coercion or oppression. The case is so clearly and widely different from that of Wooters v. Smith, 56 Tex., 199, that it is unnecessary for us to draw the line of distinction between them. There was "error, therefore, in the ruling of the court below sustaining a demurrer to the petition upon the grounds taken in the briefs of appellants.

We think, however, that the appellant is not entitled to recover damages to the extent claimed in his petition.

We are not informed by the petition as to the nature of the claim set up by the intervenors to the money in the sheriff’s hands. In the absence of averment that it was frivolous or made for delay, we must presume that it was based upon some apparently reasonable claim of right. If so, the only damages to which the appellant could lay claim were those naturally resulting to him from the money lying idle and unemployed during the time intervening between the date of its receipt by the sheriff and its payment to Eichoff. These would be satisfied by a recovery of the interest claimed in the petition, and this, we think, is the only item of damages prayed for, that the allegations of the petition as it now stands entitle the appellant to recover. If he could under any state of case recover attorney fees and,traveling expenses (which we do not by any means admit), it does not appear that these were the natural results of the bond, but he would have been subject to the same expenses had the intervenors contested his right to the money without detaining it in the officer’s hands, which they might have done without bond and security. The sureties cannot therefore be held liable for these damages.

The case is a novel one, but assimilates itself, as we have stated, in some respects toan injunction proceeding, and the plaintiff below should in no event recover more than interest as stated and the costs in the present case. The judgment is reversed and the cause remanded.

Reversed and Remanded.

[Opinion delivered April 22, 1884.]  