The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-13

paid then she evidently could not
legally have retained also tho pos
session Of tho homestead, and IL retained
under those olseumslanoeg she should have
been charged with the use and occupation
Her claim, however WIS rejected, and sho
was forced 10 Institute this suit. As before
stated, she was entitled 10 tho money or the
homestead, Under tho circumstances she
could not have been required 10 give UP the
p0gosslon Of tho homestead, Ms her rights 10
tho same might thereby have been prell'
diced, II seems that she did not retain the
exclusive control md benefit Of II and there
Is no evidence before Va showing the value Of
the use and occupation or that II was Of any
value. Her claim IN have had tho note aud
interest pald by u sale Of the homestead, "
necessary, was superior 10 the interest there
In Of the other deyl'es, ind they could not
have lawfully deprived her of possession until
such payment was made. IA thus pre-
sentGd by tho record va do not think thpt
Mrs, McNoel should have been charged with
the use md occupation even had
there been evidence Of II ynlne
The minor children OF Morgan l., MeNeo
we're not necessary parlle', and tho court did
NV VII w lNlNHlllk w N'ANl Wv NN"N NNNN
they could be brought H. Under tho WI ]
they were entllled TO specific legacy of cor
iNin pension warrants, mud had no Interest
Whatever In the homestead. Thor rights IN
the estate were legally represented by tho nd
mnislrRtor. There WA In our opinion, how
over, error In no much Of the decree rs o.
dcrod tho sale of the homestead to be made
under tho order of the District curt by tic
Sheriff, ind not through the County cou I
by tho administration, The true rule in such
cises is stated by Oh. j. Hemphill Ia CuL-
nlngham Va. TAYLOR, 20 Tex. 1876 y y
This 10 tho rule adopted IN other cases which
arc cited at length, This is an error that
can be corrected without REMINDING the case.
Thorn w. State, 10 Tex 205i Heath VI.
Garrett, 40 Tex, % Reversed and re-
formed.
A. b. Pclticolas vs.. j, II, Carpenter ct nj.
Appeal from Victoria. Opinion by Gould,
j. In 1876 Pctticoas sued Carpenter on Il
promissory note and scquestered n stock OF
goods on which he held chattel mortgage TO
secure his note. Subsequently a, Peisor II
Co. and Ralph Levy, In ing each obtained
judgments IN justices courts against Carpen-
ter, caused their exc utions 10 DO levied on the
same goods and interviewed in the suit OF
Pottcoias vs., Carpenter, denying the validity
Of the mortgage and asking the satisfaction
of their judgments by the enforcement OF
the lien arising from the levy Of their execu-
tons. Tho District court by judgment
rendered November 20, 1876, upheld the
mortgage directing the proceeds of the Sc
ouestered goods TO be applied first to the
satisfaction thereof; any surplus remaining
thereafter to be applied to the demands Of
interyenors. Whilst that judgment was in
force, not superseded nor appealed from, the
goods seQulstered were sold under IN order
OF sale regularly issued in the case of Petit
cous VS.. Carpenter, and tho proceeds were
paid over to Petticolns, no surplus remaining
for intervenors. November 4, 1878, inlerve-
nors prosecuted n writ Of error to this court,
which resulted in reversal of the Judg-
ment, the mortgage being held rs TO them
invalid, T56 Texas, G3S. In June, 1879. in
tervenors filed amended pleas of interyen-
ton. setting up these facts and seeking to re-
cover of Petticol0s the amounts of their re-
spective judgments and costs. The facts
were agreed on and the case submitted to the
court, which gave judgment that Petticolas,
within ten days after the rising OF the court,
pay to the sheriff for the interyenors, out OF
Inc proceeds of the sale received by HIM the
amounts of their respective judgments and
costs: and, on his failure to do 50, ordered
that execution issue against him IN favor OF
intervenors for said amounts. Petticoas
brings the ease here by appeal, presenting
the following questions, which were all duly
raised in the court below: |. The jurlsdic'
ton Of the District court over the case
stated in the amended pleas of intervention
and to render personal judgment against
Petticolas is cenled, the amount in contro-
versv being less than $500. In our opinion,
the jurisdiction Of the court attached
ON tie original Intervention OF APP
nelecs, and the court thereafter
retained jurisdiction TO finally dis
pose of the matters in litigation without re-
card to amounts. The controversy was as to
their respective rights TO priority of payment
ont of the proceeds of the goods, and that
question being finally decided in favor of in
teryenors, the court had authority to direct
and enforce the final appropriation oil those
proceeds, as was done. 2. 1t Is CLAIMED that
the amended pleas Of intervention set up u
new cause of action, which was barred by inc
statute of limitation of two years. Our opin-
ion is that the cause of action WAS suDslantl-
ally the same throughout, that the proceeds
of The sequestered goods be primarily applied
to the payment of the executions of lnterven--
ors-that right growing out OF the alleged
priority of their lien to an invalid mortgage
and seouestration. That APPLICATION of tie
proceeds was enforced by persona juds-
ment, authorized and rendered nee
essary by the fact that the pre-
ceeds had passed into the hands ofappellantts,
under an order of the court enormously
made. 8. 1t is asserted that the lien of the
intervenors is lost by laches, that by not pros
ecuting an appeal they allowed the proceeds
to pass regularly into the hands or Pelticolas
and thereby lost them, that the reversal OF
the Judgment did not revive it, or create a
cause OF action in their favor 1t has been
seen in the statement Of the judgment that
it did not yocate the execution lien OF the in
teryenors, but merely denied them priority
over tho mortgage. BY appealing promptly
they might have prevented the proceeds from
passing into TIE appellants hands, and not
having done SO, they permitted the personal
liability ofappellOnts to be substituted FOR
tho proceeds. 10 that extent their actual
lien on the proceeds was lost But the lien
itself had never been vacated or waived, and
still attached to the substitute or representa-
tive of the proceeds, the personal liability OF
Petticolas. The right of intervenor to writ
of error was statutory and legal. Having
procured reversal Of the judy
-. opd nm adjudication oil