Sayles & Bassetts v. Taylor

Citations

• 36 Tex. 307

Syllabus

<p>In October, 1855, E. & Co. obtained judgment against one H., and in March, 1857, also recovered judgment against the sheriff an'd his sureties for failure to return execution issued on the judgment against H. Execution having issued against the sheriff and his sureties, the sureties paid the amount of it to the attorneys of E. & Co., and the attorneys paid the same over to E. & Co., less fees. Afterwards, in 1860, the attorneys collected from H. the original judgment against him, and paid the proceeds to their clients, E. & Co., less fees. The present suit was brought by the sureties of the sheriff, to recover from the attorneys and E. & Co. the amount collected by the attorneys from H. It does not appear that the plaintiffs had made any demand of the defendants before the suit was brought. Held, that by the. plaintiffs’ payment to the attorneys of the amount recovered against them as sureties of the sheriff, although Article 4787 of Paschal’s Digest had not then been enacted, they were subrogated to the rights of E. & Co. against H., and are therefore entitled to recover from the attorneys the amount collected by them from H.; and the attorneys cannot be exonerated on the ground that their clients alone were responsible to the plaintiffs, because the maxim respondeat superior is not applicable. Held,, further, that though it was not necessary to join E. & Co. as co-defendants with their attorneys, yet the latter cannot complain that this was done, or that judgment was rendered against their clients as well as themselves.</p>