Freiberg, Klein & Co. v. Johnson

Citations

• 71 Tex. 558
• 9 S.W. 455
• 1888 Tex. LEXIS 1183

Syllabus

<p>1. Liability of Sheriff for Goods Seized.—Plaintiffs obtained a writ of attachment. It was levied upon a lot of goods not in the possession of the defendant, but of others claiming them. By consent of the plaintiffs the sheriff left the goods with the claimants. Before the levy, plaintiffs had given to the sheriff an indemnity bond. The writ of attachment was found to be defective and plaintiffs, a we ek later in same suit, obtained a second writ upon which, by consent of plaintiffs, the sheriff endorsed the levy, copied from the return upon the first, the returns showing that the goods were left in possession of the claimants. The second writ was foreclosed, no notice being taken of the first. The claimants kept the goods. In motion against the sheriff for the value of the goods alleged to have been lost by him, held (1) that the sheriff receiving an indemnity bond before making the.levy did not prevent him from showing that the goods belonged to the claimants and were not subject to seizure. (3) After receiving an indemnity bond the sheriff making a levy upon property claimed by others can either retain the goods or surrender them. In the case of surrender he would assume the burden of proving that they were not liable to seizure. (3) The sheriff could show in defense that in fact no levy had been made upon the goods, (4) or that after levy he had released the goods, at request of the plaintiffs, in the attachment, or (5) that by the acts of the plaintiffs he had been induced to. release them.</p> <p>2. Charge—Notice.—A charge must be treated as an entirety. It can not be required that each paragraph shall be so full in details as to be considered independently of the other parts of the charge. If, in the charge, actual and constructive notice are defined, it is not necessary that such definition be respected whenever the word notice occurs.</p> <p>3. Levy.—To constitute a levy upon personal property, it is necessary for the officer to take actual possession th