(after stating the facts as above). The exceptions sustained by the trial court to appellant's petition, like the plea sustained by him, questioned the power of that court to hear and determine the suit, on the ground that the action commenced by Massey against appellant November 13, 1914, in the justice court, was pending undisposed of on an appeal taken by the former to the county court. According to allegations in the petition, which the trial court in determining the question as to its jurisdiction should have treated as true, the suit commenced by Massey in the justice court was not pending in the county court on appeal, but had been finally disposed of by the judgment rendered in the justice court. If, as alleged in the petition, Massey did not file an appeal bond, or affidavit in lieu thereof, as required by law, the county court never acquired jurisdiction of the cause. Dupree v. Massey, 180 S.W. 668. As it did not, the detention thereafterwards by Hazlewood, as constable, of property belonging to appellant distrained in that suit, was unlawful. The property, instead, should have been delivered by Hazlewood to appellant, to the owner thereof. Hamilton v. Kilpatrick, *Page 792 29 S.W. 819. Hazlewood's failure to do this was not excused by the order of the county court, procured by Massey, directing a sale of the property as perishable; for, the county court not having acquired jurisdiction of the cause, its act in ordering the sale of the property was void. Carter v. Wyrick, 98 S.W. 645. It followed that if, as alleged in the petition, Hazlewood turned over the property to Massey, he and Massey both were guilty of a conversion thereof and were liable to appellant for damages.
A question as to the sufficiency of the allegations in the petition to show appellant to be entitled to recover on the bond filed by Massey to procure the order directing a sale of the distrained property as perishable was not directly made by the exceptions to the petition; but, as the cause is to be remanded, we think it proper to say they were insufficient. The condition of the bond was that Massey and the sureties would pay appellee the damages he sustained, if the sale ordered was "illegally and unjustly applied for, or illegally or unjustly made." It did not appear from the allegations that the property was sold under the order, and it did not appear therefrom that appellant was or could have been damaged by reason of the fact merely that an order for the sale of the property was "illegally and unjustly applied for."
The judgment is reversed, and the cause is remanded for trial on its merits in the court below.