The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-04-24
THE HIGHER COURTS.
SYNOPSIS OF OPINION ny THE ST.
pREME COURT.
Dies, Creditor May Hold Suretics
primarily LiubIe.

Austin, Texas, April 22,-Following is
the SYNOPSIS OF an opinion delivered by the
supreme court today;
Ii. GLOWING VS.. p. j. WILLIS & BRO,
suit TO set aside an execution sale of GER
tain real estate; from Wtlb4rger county,
Second dstrict-Reyerscd and remanded.
The suit was instituted by Glowing
against Willis a. Bro to set aside sale
of certain real estate under an execution
issued upon judgment in favor OF Wills
G. Bro. and against the plaintiff, w. IL.
Morrison and one Sumner. The trial ro-
suited in Il judgment for Willis " Bro
This Judgment Was reversed and rendered
for Glowing ON appeal TO the court oil civil
appeals.
The validity of the judgment under which
execution WAS issued depends upon ques-
tious growing out Of the following state
of facts: Willis q Bro. having judgment
against one Byars, made range !eNy
upon 200 head OF cattle which they claimed
belonged TO him. Morrison filed stat
utory claimants bond. and the tridl oi inc
right OF property resulted in judgment
against him and in favor of Willis a Bro.
Sumner and Glowing were surctles upon
this bond Morrison appealed from the
judgment giving supersedlas bond; put
Glowing neither Joined in this appeal For
signed the supersedias bond. This appeal
was subsequently abandoned Morrison
died soon afterwards and Tolbort, his adj
minlstrator, filed petition for writ OF
error in the case, which was dismissed,
Willis & bro. then presented the judgment
against Morrison, Sumner and Glowing 10
Tulbert for allowance and II was by nm
rejected Thoroupon and after the eXpirn-
tion of ninety days. suit was Instituted
AGAINST Tohert on the judgment, which
was defeated on the ground that 1t was
filed too late Glowing now claims that
he ms surety Is discharged from liability
on the claimants bond. because Willis ~
Bro have lost their remedy against the
estate of the principal obligor therein. Nor
rlson.
l. When the principal debtor dies, the
creditor need not present 'he claim 10 his
administrators He may hold the suretios
primarily liable. In such cases. the tact
that tho suit is barred by limitation rs
against the principal does not DISCHARGE
the suretias But II the right is enforced
against the sureties they may then re-
cover against tho estate OF their principal
on the implied obligation which exists by
law between the principal and his surcties
In such Cases Therefore, the court or
civil appefls erred In holding that Glowing
was discharged End In rendering judgment
against plaintiffs In error
Q. IT becomes necessary then to inquire
II there are other grounds upon which
Glowing Is entitled 10 a reversal OF the
Judgment Of the trial court
Glowing alleged In his petition that he
had delivered to Willis &c BRO. the cattle
levied upon by them as the property of
Byars. after tho rendition against him Of
the Judgment on the claimants bond; and
that therempon ono Diehl. attorney In the
case for Wills Bro. had agreed TO re-
lease him for all liability arising out OF
his deteGltion OF tho cattle. Upon this is
sue the trial court charged that Dich as
attorney FOR Willis e Bro. could not be
presumed TO have authority from them TO
make the alleged agreement and that 1t
was necessary for Glowing to chow n spe-
clal authority in him TO make The agree
inent or to show a ratification o. 1t by
willis G. bro after II was made.
The charge was erroneous, Glowing had
the right under the statute 10 return the
property within ten days after the rond-
tion OF the Judgment against him on tho
claimants bond II he did this, as al
IeeoA. he was entitled to a discharge Of tho
Judgment against him upon paying the
da,ragcs. II any, and the value Of the use
of the property and costs of suit These
items we're not parts of the original debt.
They were incidents arising out OF the suit
conducted By the attorney. Dleh. and he
had implied authority TO release Glowing
from liability therefor. Reversed and re-
mandsd 10 the district court.
Opinion by Brown. j.