On Motion for Rehearing. Appellee urges that we erred in upholding the levy upon his goods in Parker county. It is insisted that the sheriff of that county, in originally attempting to execute the writ of execution in his hands, the regularity of which is not questioned, failed to take such possession of the goods or assume such control over them as would constitute a valid levy, and that hence appellee was at liberty to take his goods as he did, and that in so doing he committed no unlawful act. In support of this contention appellee cites Revised Statutes, art. 3740, and the ease of Lynch v. Payne (Tex.Civ.App.) 49 S.W. 406. The article of the statute reads:
"A levy upon personal property is made by taking possession thereof, when the defendant in execution is entitled to the possession."
The case cited is to the effect that, where an officer went with an execution to the defendant's store, which was locked, and, without gaining entrance, nailed strips across the door, and read the writ, and notified the defendant, there was no levy.
The sheriff testified to the effect that the plaintiff in the writ, Dr. Leach, gave an indemnifying bond and pointed out the property to be levied upon:
"Yes, sir, there was an execution delivered to me in the case of Herbert F. Leach v. John H. Stone, No. 2229, out of the county court of Parker county, Tex., same being issued and delivered to me in March, 1923. I took that execution and levied upon the property. I levied upon the slicing machine, a pair of scales, and an account register, an account book I would call it. When I levied upon this property I put it to itself in a building that J. O. Booker is in possession of and was running. He was running a meat market. I told him to hold until I gave orders to let it go, that I had levied upon it. I employed Booker to take care of it for me. * * * After that I advertised the property for sale in the usual way. After I made this levy I saw Mr. Stone and had a conversation with him. I gave him notice of the sale of the property, and told him what I had levied upon. At the time I levied upon it, it was idle property. It was not being used by anybody in the conduct of any business at the time. Mr. John H. Stone, the plaintiff in this case, was running a jitney at that time. I mean he was running a service car between Fort Worth and Weatherford. I do not know where he lived at that time. I took the property into my care and into my control."
Cross-examined, he testified among other things, that:
"This property, at the time I made the levy, was in the possession of Mr. Booker. It was stored in his building before I levied upon it. I do not know whether it had been left there by Mr. Stone or not. * * * No, sir; I did not know it was exempt property when I levied upon it. * * *"
The issue having been regularly made, the burden was upon appellee to show his right to maintain the suit in Tarrant county (see Cogdell v. Ross [Tex. Civ. App.] 243 S.W. 559), and we think the evidence that we have quoted justifies the conclusion that the property had been levied upon and in the care and control of the sheriff of Parker county at the time appellee removed the property as stated in our original opinion, to his home in Tarrant county. The case of Lynch v. Payne, relied upon by appellee and cited above, was reviewed in the case of Burch v. Mounts (Tex.Civ.App.) 185 S.W. 889, in *Page 623 which a writ of error was refused. 196 S.W. xiv. In this case the facts showed that the officer levied upon certain cattle located in a pasture; they were not immediately removed from the pasture by the officer, nor were they moved in the pasture only so far as was necessary for the officer to count them; that he did not leave them in charge of the man in charge of the pasture, but informed the defendant of the levy. The court, after a review of the authorities, sustained the levy quoting with approval the following from Freeman on Execution:
"The property sought to be levied upon must be where he can exercise control over it; and he must exercise or assume to exercise dominion by virtue of his writ. He must do some act by reason of which he could be successfully prosecuted as a trespasser, if it were not for the protection afforded him by the writ. But in order to make him responsible as a trespasser, it is not essential that he should remove the property nor that he should touch it. It is enough that having the property within his view, and where he can control it, he does profess to levy and to assume control of the property by virtue of the execution and with the avowed purpose of holding the property to answer the exigencies of the writ, for one who, to that extent, assumes dominion over the goods of another, is a trespasser, unless he is justified by a valid writ. * * The property must be within the power and control of the officer when the levy is made, and he must take it into his possession in a reasonable time thereafter and in such an open, public, and unqualified manner as to apprise everybody that it has been taken in execution."
We conclude that the evidence is sufficient to sustain our original conclusion that the goods were in the lawful custody of the sheriff of Parker county at the time appellee removed them under the circumstances stated in our original opinion.
Appellee further insists that the property levied upon in Parker county was exempt from execution, and that hence appellee might lawfully repossess himself of such exempt property as he did, and that, this being true, the taking and removal of the property by the deputy sheriff from appellee's possession in Tarrant county gave jurisdiction to the courts of Tarrant county, under section 9 of article 1830, providing that:
"Where the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie, in which case the suit may be brought in the county where such crime, or offense, or trespass was committed, or in the county where the defendant has his domicile."
In support of this contention appellee cites 5 Corpus Juris, 646, to the effect that:
"The owner of personal property may retake it by force from one who has wrongfully deprived him of its possession, if he can do so without wounding the wrongdoer or resorting to the use of a dangerous weapon."
Also 11 R.C.L. 551, § 71, where it is said:
"It has been decided that where an officer attempts to levy on exempt property, after being informed of the fact, he is a trespasser, and the owner may employ as much force as is necessary to prevent the levy."
We will not stop to inquire into the circumstances under which such rulings have been made, for, as applied to the facts of the case now before us, we can give consent to no such proposition. The sheriff's possession was not wrongful, and it is to be noted that at the time of the levy under consideration, appellee was not engaged in the business of conducting a meat market or using the articles levied upon, but on the contrary engaged in an altogether different occupation, and that the sheriff had not been notified, so far as the evidence shows, that the articles in fact were exempt from execution. Whether they are or not constitutes an issue proper for determination in the suit by appellee against the plaintiff in the execution and the sheriff for damages, and we know of no decision sustained by reason or authorities which justified appellee in determining for himself that the property was in fact exempt to him, and that he might lawfully take it out of the custody of the law. To maintain any such a doctrine is a mistaken and dangerous view, since to so maintain is to make the individual rather than the regularly constituted authorities the judge of the merits of his own claim and subversive of law and order. See authorities cited and discussion in note to the case of Van Dresor v. King, 75 Am.Dec., p. 643.
Appellee's motion will be overruled.
*Page 624BUCK, J., not sitting.