While I concur in the legal conclusion stated as a ground for reversing the judgment in this case, I think it should have been dismissed for want of jurisdiction in the trial court. The record shows that two separate and distinct claims were filed. One is based upon an affidavit and bond dated July 21, and the other on an affidavit and bond dated July 24. The first claim involves an auto truck and trailer valued at $150; the second claim involves a number of logs valued at $450. These values were added in order to bring the subjectmatter within the jurisdiction of the district court. The question is, Can that be done?
The proceeding in a trial of the right of personal property is purely statutory. The following articles of the Revised Statutes of 1911 settle, I think, the question of jurisdiction:
"Art. 7773. Whenever any person shall claim property and shall make the oath and give the bond, as provided for in this chapter, if the writ under which said levy was made was issued by any justice of the peace or court of the county where such levy was made, the sheriff or other officer receiving such oath and bond shall indorse on the writ that such claim has been made and oath and bond given, stating by whom, and shall also indorse on such bond the value of the property as assessed by himself, and shall forthwith return such bond and oath to the proper justice or court having jurisdiction to try such claim, as hereinafter provided. * * *
"Art. 7776. Whenever any person shall claim property and shall make the oath and give the bond as provided for herein, if the writ under which such levy was made was issued by any justice of the peace or court of another county than that in which such levy was made, then the officer receiving such oath and bond shall indorse on such bond the value of the property as assessed by himself, and shall forthwith return such bond and oath, with a copy of the writ, to the justice or court of the county in which such levy was made having jurisdiction according to the value of the property as assessed by said officer.
"Art. 7777. The sheriff or other officer taking such bond shall also indorse on the original writ that such claim has been made and oath and bond given, stating by whom, the names of the sureties and to what justice or court the bond has been returned; and he shall forthwith return such original writ to the justice or court from which it is issued.
"Art. 7778. Cases arising under this chapter shall be tried as follows:
"1. Where the assessed value of the property does not exceed two hundred dollars, the writ shall be returned to a justice of the peace, as before provided.
"2. Where the value assessed is more than two hundred dollars and does not exceed five hundred dollars, the writ shall be returned to the proper county court. *Page 869
"3. When the assessed value is more than five hundred dollars, the writ shall be returned to the proper district court.
"Art. 7779. Whenever any oath and bond for the trial of the right of property shall be returned, as provided for in this chapter, it shall be the duty of the clerk of the court, or of such justice of the peace, to docket the same in the name of the plaintiff in the writ as the plaintiff, and the claimant of the property as defendant."
Stated in a summary manner, the law requires that, when property levied upon is claimed by one not a party to the writ, and a proper affidavit and bond are presented to and accepted by the officer executing the writ, his duty is plain. He must assess the value of the property, indorse that valuation on the bond, and then return both the bond and the affidavit to a court of competent jurisdiction. That valuation determines the court to which the papers shall be sent, or returned, and in which the case must be tried. If the value of the property is $200 or less, the bond and affidavit must be returned to a justice court. If more than $200 and less than $500, they must be returned to the county court. If over $500, the district court is the proper tribunal in which to try the case and to which the papers must be returned. That return must be made "forthwith." 2 Bouv. Law Dict. 12S9, thus defines the word "forthwith":
"As soon as by reasonable exertion, confined to the object, it may be accomplished. * * * It is not as promptly as immediately; in some cases it might mean within a reasonable time. * * When a defendant is ordered to plead forthwith he must plead within twenty-four hours. * * * In other matters of practice the word has come to have the same meaning."
The affidavit and bond when presented make a complete legal controversy, and when received by the justice of the peace, or clerk of the county or district court, to whom sent, must be entered on the docket, subject to trial at the next succeeding term of the court. It also becomes the duty of the officer who made the levy to "forthwith" return to the court from which it was issued the writ by virtue of which he seized the property. That direction seems to imply that the writ should not be held and used as authority for other levies. Whatever delay may be implied in the language defining the word "forthwith," the statute evidently means that the writ shall be returned without unnecessary delay, and without being held for further execution. The important feature of this law to be considered in this connection is, not the time that may lawfully be taken in making the actual return of the papers to the proper court, but the happening of an event, or occurrence of a legal transaction, which terminates the life of the writ. If upon the happening of that event, or the occurrence of that transaction, the writ must be returned, it is because it cannot be further legally used for seizing other property. If an officer should, immediately after the filing of a claimant's bond, make an actual return of the writ, refusing to hold it as authority for seizing property belonging to the defendant, he could not be held liable for a dereliction of duty, because in thus acting he had only obeyed the law. If he may, under such conditions, return the writ and refuse to make other levies until furnished with another writ, then he must do it. The law allows him no discretion in such matters. It is true that under the general law a writ of attachment is returnable on or before the first day of the next term of the court from which it was issued. That is a general provision fixing the return day or writs which have not been executed, or those which have been levied upon property claimed only by the defendant. But, when a claim is made in the manner prescribed by the statute, an exceptional situation arises, and the proceeding, including the return of the writ, are controlled by the law relating to that situation. In special proceeding appropriate special statutes supersede the general law.
When a time arrives or the event occurs when the writ must be returned without further execution, it becomes functus officio, and all subsequent seizures are void. Cain v. Woodward, 12 S.W. 319, 74 Tex. 549; Terry v. Cutler, 23 S.W. 539, 4 Tex. Civ. App. 570; 3 Freeman on Ex. (3d. Ed.) § 353. The clear inference from the record in this case is that the truck and trailer involved in this suit and valued at $150 were seized under the writ of attachment on or before July 21, the date of the affidavit and bond. When that claim was legally made, the writ ceased to be authority for further seizures and was returnable to the proper justice court forthwith, or immediately. The seizure of the logs, presumably made later, was without authority and void. The officer had no legal authority to add the two valuations together and thereby confer jurisdiction on the district court, as was attempted in this case.
There is a reason for requiring an original writ to be returned before the day fixed by the general law. Trial of right of property is a summary proceeding and is designed to be a short and expeditious method of settling such collateral controversies. Lang v. Dougherty, 12 S.W. 29,74 Tex. 228; Towns' Pleading (2d Ed.) 587. No provision is made for notifying the plaintiff in the writ that a claim has been made by a third party, and in what court he is required to appear and contest the claim. It has been held that the return of the writ to the court from which it was issued is intended to operate as constructive notice. Betterton, Irvine Co. v. Buck, 2 Willson, Civ.Cas.Ct.App. § 198, page 160. It may also be necessary to introduce the writ in evidence to prove material facts put in issue by the pleadings of the *Page 870 parties. Fort Worth Pub. Co. v. Hitson, 14 S.W. 843, 16 S.W. 551,80 Tex. 234; Latham v. Selkirk, 11 Tex. 314; Towns' Pleading (2d Ed.) 593; and cases referred to in notes.
For the reason stated, I think the district court had no jurisdiction over the subjectmatter of this controversy, and should of its own motion have dismissed the case. The question is a fundamental one, and it is of no importance that the failure of the trial court to so act is not assigned as error.