(218 S.W.) sales, and what was said therein had refer- formed so as to expressly provide that appelence to the question whether the irregular- lants Wagner take nothing by their plea for ities made the writ void, and not whether rents for the period mentioned. The rents they were sufficient to require that the sale accruing after the trial must be demanded, of be set aside upon direct attack. See Collins course, in a separate suit. v. Hines, 100 Tex. 304, 99 S. W. 400, for discussion of this point. Appellee also relies upon said case of South Texas Lumber Co. v. Burleson, 178 S. W. 961, for the purpose of showing that the facts of this case do not authorize relief at the instance of the judgment creditor. We regard the facts of this case as much stronger than those stated in the opinion in that case. The contentions presented by the eleventh, thirteenth, and fourteenth assignments cannot be sustained. [9, 10] We are also requested to adjudge that the sheriff repay to Hudler the money in his hands, and to eliminate from our judgment the award in favor of Hudler against appellants of the sum of $625. In this connection, our attention has been called to the fact that the appellants paid the sum of $625 into the registry of the court, thus making good their tender. The money in the hands of the sheriff should have been paid into the registry of the court to await the result of the trial. As an officer of the court was hold The judgment is reversed, and judgment ing money collected under process of the rendered setting aside the sale to appellee and canceling the deed made him by the sheriff; that appellant Wagner and wife have their writ of possession for the premises described in their petition. It is further adjudged that appellee do have and recover of appellants the sum of $625. The costs in the trial court and of the appeal will be assessed against appellee. On Motion for Rehearing. court, the court upon motion would have been authorized to require that such money be paid into the registry of the court. This was not done. The sheriff not being a party to this suit, no judgment can be rendered by this court against him. We therefore conclude that the judgment should be reformed to this extent, that it shall provide that, if the money in the hands of the sheriff is repaid by him to Hudler, such payment shall operate as a satisfaction, to that extent of the judgment herein rendered by this court in favor of Hudler against appellants, and the judgment is further amended as to provide that, upon the satisfaction of said judgment being duly shown, the clerk of the court is authorized to repay to appellants the money paid by them into the registry of the court. [7, 8] Appellants have filed a motion for rehearing and to reform the judgment. We are requested to award a recovery of rents for the time intervening between the date Hudler took possession and the date of the trial. The trial court made no finding on the point, and we regarded the evidence as of such uncertain character as to furnish no These changes, not being those requested basis for fixing the amount of rents, and in the motion, will be made upon motion of therefore refused to allow same. Being still the court, and said motion of appellants wil! of the same opinion, the judgment will be re- be overruled. the right of property in said automobile, the WARREN et al. v. JOHNSON et al. (No. 7758.) | Lion Bonding & Surety Company being the (Court of Civil Appeals of Texas. Galveston. Nov. 20, 1919. Rehearing Denied. Dec. 18, 1919.) surety upon said bond; that on November 24, 1915, the Atlas Construction Company recovered judgment in the suit against Johnson, with foreclosure of its attachment lien, 1. CHATTEL MORTGAGES 113-MORTGAGE TO and also recovered judgment in the trial of INDEMNIFY SURETY CONSTRUED TO AUTHORIZE SALE ONLY IN CASE OF JUDGMENT NOT APPEALED FROM. A chattel mortgage, executed to indemnify a surety on a claimant's bond authorizing the trustee to take possession and sell the property if judgment should be rendered against the mortgagor and he should not appeal, and providing, in case of an appeal the mortgage should remain in force, and if judgment should be rendered against the surety the same remedy should apply, and providing that the surety's remedies and rights should be fully matured without it being required to first pay any judgment, costs, and expenses, did not authorize a seizure and sale in case of a judgment against the claimant from which he appealed. 2. CHATTEL MORTAGAGES 113-MORTGAGE, AUTHORIZING SALE IN CASE OF JUDGMENT UNLESS "APPEAL" WAS TAKEN, INCLUDED WRIT OF ERROR. . A chattel mortgage to indemnify the surety on a claimant's bond, authorizing a sale of the property if judgment was rendered against the mortgagor and no appeal taken, used the word "appeal" as meaning a taking of the case to a higher court by any authorized method, including a writ of error. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Appeal.] It is further alleged that before the judgments in the suits before mentioned were rendered, the matter in controversy between the Atlas Construction Company and the said defendant Johnson had been fully settled, and Johnson released from all claims and demands by said company, and that the purpose and object of the parties (defendants here) in continuing the prosecution of said suits and obtaining judgments therein "was not to reach the said Johnson, but to proceed against and reach the said Warren, and to convert the said automobile to the use of the defendants herein, their agents and attorneys, by taking 'snap' judgments." The petition contains allegations of fraud and willful wrong on the part of the defendants, which for the purposes of this opinion it is unnecessary to set out. It is also alleged that plaintiff Mrs. Warren purchased the automobile from her husband on June 20, 1915. The judgment against Warren and the Lion Bonding & Surety Com Appeal from District Court, Harris Coun- pany, the surety on his claimant's bond, was ty; Hugh M. Potter, Special Judge. Suit by Mrs. J. B. Warren and husband against S. Johnson and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded. A. C. Van Velzer, of Houston, for appel lants. A. B. Wilson and E. T. Chew, both of Houston, for appellees. PLEASANTS, C. J. This suit was brought by Mrs. J. B. Warren, joined by her husband, against Lion Bonding & Surety Company, J. A. Allen, R. E. Goree, A. B. Wilson, A. O. Blackwell, John Boone, George Khulman, Sid Westheimer, and Ludwick Scharck, to recover damages for the alleged wrongful conversion by defendants of an automobile belonging to plaintiff, Mrs. Warren. brought to this court for review by writ of error, and was set aside by the judgment of this court. No execution was levied upon the judgment, the only execution issued having been returned "unsatisfied by order of the plaintiff." The Lion Bonding & Surety Company did not pay the judgment rendered against it as surety on the claimant's bond, or any part of it. After this judgment was rendered against it, and before the writ of error was sued out there from by Warren, it brought suit by its trustee, Allen, against Warren, and sued out an attachment which was levied upon the car. This attachment was quashed. Thereafter it sued out two writs of sequestration in said suit, both of which were also quashed, after which it dismissed its suit. The defendant Boone, who in his official capacity as constable held possession of said car under said writs of attachment and sequestration, refused upon the quashing of the writs and the dismissal of the suit to deliver the car to plaintiff Warren, but deliver The petition alleges that in a suit brought by the Atlas Construction Company on April 2, 1915, against one Steve Johnson, an attachment sued out by the plaintiff in said suit was levied upon the automobile in questioned it to the Lion Bonding & Surety Company as the property of the defendant Johnson, and that thereafter, on May 5, 1915, J. B. Warren filed a claimant's oath and bond for trial of upon its execution and delivery to him of a bond of indemnity. Having obtained possession of the car in this manner, said company For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) sold it for $100, and appropriated the pro- | due on this bond or in seeking its discharge as ceeds to the payment of costs and attorney's surety shall be deemed a proper charge or fees incurred in the litigation before mentioned. Plaintiff's in this suit alleged that the value of the car was $300. In addition to this value they claim actual damages in the sum of $3,600 as the value of the use of the car, and exemplary damages in the sum of $5,000. They also claim $500 as attorney's fees. The defendants answered by general and special exceptions and general denial, and further defended upon the ground that the Lion Bonding & Surety Company was expressly authorized by the terms of a chattel mortgage executed and delivered by Warren to J. A. Allen, trustee, to indemnify said company, as his surety upon his claimant's bond, "to take possession of the automobile and sell it at public or private sale and apply the proceeds to the payment of any court costs, expenses, and attorney's fees for which Lion Bonding & Surety Company was liable, whether paid or not, and authorized the sale of the automobile and application of proceeds without payment in advance by Lion Bonding & Surety Company of any court costs, expenses, and attorney's fees, which such court costs, expenses, and attorney's fees had been incurred by Lion Bonding & Surety Company, or for which it was liable; that said automobile was sold under the terms of said chattel mortgage for $100, and the proceeds applied to the payment of court costs, attorney's fees, and expenses, leaving a balance due defendant surety company of $150." expense within the meaning of the preceding sentence, and the surety is hereby authorized to prove such costs or expenses in any action or proceeding against the indemnitor, and include the same in any judgment or decree, which may be recovered against said indemnitor, and the company may bring as many actions hereupon as there are defendants, the recovery of each judgment not to, be a bar to the recovery of any other judgment. That in any accounting which may be had between the indemnitor and the surety, the surety shall be entitled to credit for any and all disbursements in and about matters herein contemplated made by it. "That the surety shall at its option have and may exercise in the indemnitor's name or otherwise, any and all rights and privileges which the indemnitor has or may have in the premises. if any suit is brought on the bond herein ap"That the indemnitor hereby further agrees plied for, to permit said company to employ its own counsel or attorney to defend such suit and to repay to said company the fee of said counsel or attorney and all other costs and expenses to which said company may be put in defense of said suit." The conditions of the chattel mortgage executed by Warren for the purpose of indemnifying his surety are as follows: "In the event judgment should be rendered against me in the above numbered and entitled cause upon said claimant's bond, in said court, and I should not appeal said cause within the time allowed by the statutes of the state of Texas, now in force, then the said J. A. Allen, or his successors hereinafter named, is hereby authorized and directed to get possession of said above-described property, and sell the same at either public or private sale and apply the proceeds to the payment of any judgment that may be rendered against me in the above The trial court held that the surety company had the right to take possession of the car under the terms of the application for the bond and the indemnity contract and sell it, applying the proceeds to court costs, at-numbered and entitled cause, upon said claimtorney's fees, storage, etc., incurred by it for its protection, and the court instructed the jury to return a verdict for defendants. Under appropriate assignments of error appellant assails this ruling of the trial court. The application made by Warren to Lion Bonding & Surety Company to execute as surety his claimant's bond contains the following provision: "The indemnitor will perform all conditions of said bond on the part of the indemnitor to be performed and will at all times indemnify and keep indemnified the surety and hold and save it harmless from any and all damages, loss, costs, charges and expenses of any kind or nature whatsoever which it may at any time sustain or incur by reason of its suretyship, and will pay over to the surety, its successors or assigns, all sums of money which may be paid by or for the surety or which it may become liable to pay by reason of such suretyship. Council and attorney's fees, whether incurred under retainer or salary, or any other expense incurred by the surety at any time, in any litigation, investigation, collection of premiums ant's bond, and any and all costs of court and said J. A. Allen or his successors in taking attorney's fees which may be incurred by the. possession of and selling said automobile and applying the proceeds to the payment of said judgment; and in the event said automobile shall not bring sufficient money to pay off said judgment, interests, costs and attorney's fees, and any and all other expenses incurred by the said J. A. Allen, or his successors, I hereby agree and obligate myself to pay any balance. "In the event I shall appeal from the decision of the court upon the trial of the above numbered and entitled cause, this chattel mortgage shall remain in full force and effect, and in the event any judgment shall be rendered against Lion Bonding & Surety Company upon the claimant's bond by the Court of Civil Appeals or Supreme Court, the remedy as herein provided in the foregoing paragraph shall apply. "It is hereby stipulated and agreed that said above-described property may be sold to pay any judgment, interest, court costs and attorney's fees and other expenses, without Lion Bonding & Surety Company first having paid the same, it being hereby expressly understood and agreed that the remedies and rights of Lion Bonding & Surety Company shall be deemed fully matured, and its right of action shall not depend upon the payment of it of any sums of money hereunder. "It is hereby further stipulated and agreed that this chattel mortgage together with my application to Lion Bonding & Surety Company for the claimant's bond, upon which Lion Bonding & Surety Company is surety, shall be and form one contract and agreement, and that all of the rights and remedies provided for in the application shall be in no wise impaired, changed, altered or varied by the provisions contained in this chattel mortgage, unless Lion Bonding & Surety Company shall elect to pursue the remedies herein prescribed and given it in lieu of any remedies and rights given it in said application, and that the Lion Bonding & Surety Company may adopt any remedies herein given or contained in the application as to it may seem most suitable and adaptable to the preservation and securing of its rights and remedies to save it from any loss, damage, court costs, expenses or injury." and also by the more direct method of simply giving notice in the trial court and filing an appeal bond within a prescribed time thereafter. Either method of procedure is an appeal of the cause. Our Supreme Court and appellate courts have held in a number of cases that a writ of error is but one of the methods of appeal, and the word "appeal," when used in our statutes, unless by the context and evident purpose and intent of the act is intended as designating the specific method of taking a case from a lower to a higher court designated in the statute as appealing the case, includes the method of appeal by writ of error. Luckett v. Townsend, 3 Tex. 120, 49 Am. Dec. 723; Green v. Martin, 43 Tex. 653; Magee v. Chadoin, 44 Tex. 488; Railway Co. v. Lacy, 7 Tex. Civ. App. 63, 26 S. W. 413; La. & Rio Grande Canal Co. v. Quinn, 160 S. W. 151; Trammell v. Rosen, 165 S. W. 518. We think the word "appeal" in this contract means only the taking of the cause to the appellate court for review without reference to the method by which the appeal is taken. [1] We cannot agree with the trial court in the construction placed by it upon the contract of indemnity. The authority given the trustee to take possession of the automobile and sell it for the purpose of indemnifying the Lion Bonding & Surety Company is given only in event judgment should be rendered against the claimant on his claimant's bond, and he should fail to appeal therefrom, and this limitation upon the right of seizure by the trustee is again expressed in the provision of the contract which declares that in event an appeal is taken the mortgage shall continue in full force and effect for the protection of the surety against any judgment that may be rendered by the appellate court. There is nothing in the succeeding clause of the contract, which authorizes the sale of the property to protect the surety against liability on the claimant's, bond and the costs (Court of Civil Appeals of Texas. The evidence raised the issue of damage as claimed by appellants, and the case should have gone to the jury under proper instructions. It follows from these conclusions that the judgment should be reversed and the cause remanded; and it has been so ordered. Reversed and remanded. WELDER v. SINTON INDEPENDENT San Antonio. Dec. 31, 1919. Rehearing Denied Jan. 28, 1920.) APPOINTED SCHOOL DISTRICT ASSESSOR. and expenses incurred by it without its having first paid same, which in any way affects the plain provision that the right of arbi- 1. OFFICERS 30-CITY ASSESSOR MAY BE trary seizure and sale can only be exercised in event there is a judgment against the claimant on the bond and no appeal is taken therefrom. The undisputed evidence shows that a writ of error was sued out by appellant from such judgment within the time allowed by law, and that the judgment was reversed by the appellate court. That one is city assessor and collector when appointed assessor and collector for a school district is no impediment to taking the district office, though because, under the Constitution, two offices may not be held, acceptance thereof may vacate the city office. 2. SCHOOLS AND SCHOOL DISTRICTS 103(1)— ONE MAY BE DE FACTO ASSESSOR NOTWITH- [2] The only question we think that could arise upon the construction of this contract Neither informality and irregularity of apis whether in the clause "appeal said cause pointment to the office of assessor and colwithin the time allowed by the statutes now lector of school district, by the board authorin force," the word "appeal" was used in its ized to choose such officer, nor, failure of the restricted technical sense, and does not in- appointee accepting to take or give the preclude taking the cause to a higher court by scribed oath or bond, prevents him being a de facto officer; one being such where he enters writ of error. In its ordinary sense an ap- into possession of an office and discharges its peal of a case means taking it to a higher functions, under color of title or authority, court by any authorized method. Our stat- which may be acquired from an election or aputes give the right of appeal by writ of error, pointment, however irregular or informal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] The first, second, and third assignments of error assail the conclusion of the trial judge that G. L. Cellum was a de facto assessor and collector of taxes for the Sinton independent school district, on the grounds that the evidence showed that the attempted and purported action of the school trustees in selecting him to asses the taxes of 1918 was invalid, because he was not selected as assessor and collector of the dis 4. SCHOOLS AND SCHOOL DISTRICTS 103(1) -NOT GOVERNED BY GENERAL LAWS FOR AS-trict, and that Cellum did not act as assess SESSMENT AND COLLECTION OF TAXES. Any failure of Loc. & Sp. Laws 35th Leg. (1917) c. 37, creating the Sinton independent school district, to prescribe ways and means for assessment and collection of taxes, does not require the general laws as to taxation to be consulted, but is covered by section 30 of the act providing that, as to all matters not provided for in the act, the board of trustees shall have the powers conferred on independent school districts. or and collector of the district, but attempted to assess in a purely informal manner and without the color of authority. The proposition is that it is unconstitutional for a persou to hold two offices of emolument, and that Cellum was endeavoring to hold the offices of city assessor and collector, as well as the district office of tax assessor and col lector of the school district. The conclusion of the court was that, if it was unconstitutional to hold the two offices, the acceptance 5. SCHOOLS AND SCHOOL DISTRICTS 103(1) of the district office operated to vacate the RAISING VALUATION OF ACREAGE ONLY office of city assessor and collector, and that the fact that Cellum held the city office offered no impediment to his taking the district office. The conclusion reached by the trial court 103(1) take the oath of office or give bond as aswas undoubtedly correct. Cellum did not -DISCRIMINATION BY BOARD OF EQUALIZA- Discrimination in raising the valuation of the lands is not evinced by the fact that the board of equalization of a school district acted "under a deliberately adopted policy and concerted scheme or plan." sessor and collector of the school district, but tenaciously held to his office of city assessor and collector. The minutes of the school board showed that Cellum was appointed to assess and collect taxes at a per cent. to be agreed upon, not exceeding 4 per cent. In this connection it may be stat Appeal from District Court, San Patricio ed that the fact Cellum was a city assessor County; M. A. Childers, Judge. Action by John J. Welder against the Sinton Independent School District. Judgment for defendant, and plaintiff appeals. Af firmed. Proctor, Vandenberge, Crain & Mitchell, of Victoria, and J. G. Cook, of Sinton, for appellant. G. R. Scott and Boone & Pope, all of Corpus Christi, and J. C. Houts, of Sinton, for appellee. and collector could add no validity to, or in any manner affect, his employment to assess and collect taxes for the district; but the appointment must be considered as though Cellum was a private citizen and held no office of any kind, prior to undertaking the duties of assessor and collector of the school district. An acceptance of a second office would not have the effect of destroying the second office, but might destroy the right to hold the first. State v. Brinkerhoff, 66 Tex. 45, 17 S. W. 109. [2] If it be admitted that Cellum was inFLY, C. J. Appellant sought to enjoin ap- formally and defectively appointed district pellee from collecting a certain sum of money assessor and collector, that would not preclaimed to be due for taxes for school pur- vent him from becoming the de facto officer, poses during the year 1918. Other parties because it seems definitely settled that a D. Odem, Mrs. Agnes Fleming et al., and B. person is a de facto officer where he enters F. Anderson et al.-filed separate suits into possession of an office and discharges against appellee of a like character as in its functions, under color of title or authorithis case, and, although each of the cases has ty, which color of title or authority may be been brought to this court on a separate ap- acquired from an election or appointment, peal, it has been agreed that the same brief | however irregular or informal. Ruling Case may be filed in each case, and a decision in this case will perforce decide the appeals in the other cases. In each of the cases the relief sought was denied. Law, p. 593, § 313; State v. Oates, 86 Wis. 634, 57 N. W. 296, 39 Am. St. Rep. 912; Waterman v. Railway, 139 Ill. 658, 29 N. E. 689, 15 L. R. A. 418, 32 Am. St. Rep. 228; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |