Opinion
No. 521.
January 27, 1916.
Appeal from Presidio County Court; H. H. Kilpatrick, Judge.
Action by Rafael Marquez against D. Herrera and others, with writ of sequestration by plaintiff and replevy by defendants. Judgment for plaintiff against defendants, and the surety on their replevy bond, and they appeal. Reversed and remanded.
C. E. Mead and K. C. Miller, both of Marfa, for appellants. Belcher Sutton, of Marfa, for appellee.
Marquez brought this suit against D. Herrera and Theo. Ehrenberger to recover 127 hides, alleged to be of the value of $4.50 each, or a total value of $571.50. Judgment was prayed for the title and possession of said hides or the value thereof aforesaid. A writ of sequestration was issued under which the hides were seized. Thereafter same were replevied by defendants.
Upon trial, a verdict was returned as follows: "We, the jury, find for the plaintiff for the amount prayed for, $571.50." Judgment was thereon rendered in plaintiff's favor against defendants and the surety upon their replevy bond in the sum of $571.50.
By proper assignments, appellants question the sufficiency and correctness of the verdict and judgment herein. The verdict should have disposed of the issue of title, rather than finding in plaintiff's favor for a sum certain.
If the issue of title was resolved in favor of plaintiff, the verdict in addition should have found the value of each of the replevied hides. The judgment should have shown such value as the defendants had the right to return all of the hides in satisfaction of the judgment or part of them in satisfaction thereof, pro tanto. R.S. art. 7107; Blakely v. Duncan, 4 Tex. 184; Cook v. Halsell, 65 Tex. 1; Avery Sons v. Dickson, 49 S.W. 662; Ratliff v. Gordon, 149 S.W. 196; Bateman v. Hipp, 111 S.W. 973.
This is always the case, unless it is shown the property has been disposed of by the parties who replevied it, or that for some other reason it cannot be produced. Herder v. Clothing Co., 37 S.W. 784; Pipkin v. Tinch, 97 S.W. 1077.
Error is assigned to that portion of the court's charge upon the measure of damage. The measure of damage announced was the reasonable market value of the hides at the time they were taken. This was error. The value of property sequestered and retained by defendants under replevy bond should be determined by its market value at the time of trial when the question arises in the original suit and under the statute. R.S. art. 7106; Luedde v. Hooper, 95 Tex. 172, 66 S.W. 55; Talcott v. Rose, 64 S.W. 1009.
This portion of the charge also peremptorily instructed the jury that the undisputed evidence showed the hides to be of the value of $571.50. The only evidence of value called to our attention is that of G. A. Harvard who, by deposition, testified the hides were of the market value of $5 each. His testimony does not show at what date they were of this value, and hence there was no evidence before the jury by which, under the authorities above noted, they could correctly measure plaintiff's damage, if he were otherwise entitled to recover.
In view of a retrial, we deem it proper to say — with reference to the assignnent complaining of the evidence offered of plaintiff's brand — that such brand, even if not properly recorded in El Paso county, is admissible for the purpose of proving the identity of the animals from which the hides were taken, if the ownership of the animals with that brand bo otherwise proven by the testimony of plaintiff or in any other proper way. If not recorded at all, it would be admissible as a fact tending to establish the identity of the animals from which the hides came. Poage v. State, 43 Tex. 454; Gregory v. Nunn, 25 S.W. 1083; Lockwood v. State, 32 Tex.Cr.R. 137, 22 S.W. 413.
The fifth assignment questions the sufficiency of the evidence. In view of a retrial, we refrain from commenting upon the probative force of the evidence, and therefore do not pass upon this assignment.
Reversed and remanded.