American Surety Co. of New York v. Stebbins, Lawson & Spraggins Co.

Court of Appeals of Texas

American Surety Co. of New York v. Stebbins, Lawson & Spraggins Co.

181 S.W. 567, 1916 Tex. App. LEXIS 13

CourtCourt of Appeals of Texas

DecidedJanuary 8, 1916

DocketNo. 6604.

StatusPublished

This text of 181 S.W. 567 (American Surety Co. of New York v. Stebbins, Lawson & Spraggins Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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American Surety Co. of New York v. Stebbins, Lawson & Spraggins Co., 181 S.W. 567, 1916 Tex. App. LEXIS 13 (Tex. Ct. App. 1916).

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Opinion

TALBOT, J.

The Stebbins, Lawson & Spraggins Company brought this suit against the Bray Company to recover $730.86, alleged to be due on account. A writ of attachment was sued out and levied upon certain personal property of the defendant. On August 5, 1910, the defendant, the Bray Company, replevied the property attached by giving bond with the plaintiff in error herein as surety. Citation to the Bray Company was issued but not served, the sheriff’s return reciting that said company had gone to Kansas City to reside and could not be found. On November 1, 1910, judgment was rendered against the said defendant for the amount sued for, and against the plaintiff in error, American Surety Company, as surety on the replevy bond. From this judgment *568 the American Surety Company sued out a writ of error to this court.

The controlling question presented for de: termination is whether or not the execution and filing of the replevy bond by the Bray Company, with the plaintiff in error as surety, was such an appearance on the part of the Bray Company as authorized judgment by default against said company and its surety on the replevy bond.

This question was certified by this court to our Supreme Court for decision and the same answered in the negative. In passing upon the question the Supreme Court handed down an exhaustive opinion, to which we feel we can add nothing useful. The opinion of the Supreme Court, together with a full statement of the case, will be found in 180 S. W. 101. The decision of the Supreme Court, in which we concur, requires a reversal of the ease, and in order that the defendant in error, the Stebbins, Lawson & Spraggins Company, may have an opportunity to secure service of citation on the Bray Company in some mode provided by statute the case will be remanded.

Reversed and remanded.

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TALBOT, J.

The Stebbins, Lawson & Spraggins Company brought this suit against the Bray Company to recover $730.86, alleged to be due on account. A writ of attachment was sued out and levied upon certain personal property of the defendant. On August 5, 1910, the defendant, the Bray Company, replevied the property attached by giving bond with the plaintiff in error herein as surety. Citation to the Bray Company was issued but not served, the sheriff’s return reciting that said company had gone to Kansas City to reside and could not be found. On November 1, 1910, judgment was rendered against the said defendant for the amount sued for, and against the plaintiff in error, American Surety Company, as surety on the replevy bond. From this judgment *568 the American Surety Company sued out a writ of error to this court.

The controlling question presented for de: termination is whether or not the execution and filing of the replevy bond by the Bray Company, with the plaintiff in error as surety, was such an appearance on the part of the Bray Company as authorized judgment by default against said company and its surety on the replevy bond.

This question was certified by this court to our Supreme Court for decision and the same answered in the negative. In passing upon the question the Supreme Court handed down an exhaustive opinion, to which we feel we can add nothing useful. The opinion of the Supreme Court, together with a full statement of the case, will be found in 180 S. W. 101. The decision of the Supreme Court, in which we concur, requires a reversal of the ease, and in order that the defendant in error, the Stebbins, Lawson & Spraggins Company, may have an opportunity to secure service of citation on the Bray Company in some mode provided by statute the case will be remanded.

Reversed and remanded.

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181 S.W. 567, 1916 Tex. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-surety-co-of-new-york-v-stebbins-lawson-spraggins-co-texapp-1916.

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