On Motion for Rehearing.
Appellees present a very forceful motion for rehearing that merits some notice. Among other things, it is insisted that the assignments of error do not support the proposition upon which the judgment was reversed, and that, in considering the same, we were in conflict with many decisions of this state relating to the sufficiency of assignments. The assignments that appellees in their motion assumed that we sustained are appellants’ first and second, which are as follows:
“The court erred in not setting aside the verdict and judgment rendered against the First State Bank of Hamlin, and granting it a new trial in this cause, for the reason that said verdict and judgment are not authorized by law as given in the court’s charge to the jury, the pleadings of the case, and the evidence admitted under the ruling of the court upon the trial of the case.
“The court erred in refusing to set aside the verdict and judgment because same are not responsive to nor decisive of the issue made by the pleadings and the evidence of the plaintiffs Jones and Nixon and this defendant, and the charge of the court applying the law thereto.”
These assignments were objected to upon the original hearing, and we agree with ap-pellees that they point out no specific error and are too general to require consideration. We thought, however, that, if the error discussed was not apparent of record, it was necessarily involved in the determination of appellants’ third assignment of error to the charge of the court, and to which we referred in our original opinion. This assignment was that the court erred in charging the jury “that the writ of attachment offered in evidence in this case was unauthorized by law,” and that “by the term ‘conversion’ it means where an officer seizes property under a void writ.” Under this charge and the undisputed facts, there seemed to be no other alternative than a verdict in appel-lees’ favor, the very material issue of waiver, which we discussed in the original opinion, being thereby in effect determined against appellants, which we thought was erroneous. We therefore merely adopted appellants’ fourth proposition under its first and second assignments of error as presenting in its most concrete form the real question presented by the assignments and the record.
Nor did we hold, as appellees insist, that the acts of the sheriff in making the levy were insufficient to constitute a conversion, but, treating them so, that appellees through the acting partner voluntarily pursued the remedy of reclaiming the property, and thereby waived the conversion. In this respect the case is wholly unlike the case of Crawford v. Thomason, 53 Tex. Civ. App. 561, 117 S. W. 181, so urgently pressed upon us. That one so electing who actually receives the property in return cannot thereafter also recover the value of the property would seem manifest, and in this- case the record shows no obstacle, as in the case of Terry v. Webb, 96 S. W. 70, .that prevented appellees from reaping the benefit of the remedy of which they elected to avail themselves. In that case Terry sought and finally obtained a judgment for the return of attached property, but, before such final judgment, the property had been sold and the proceeds otherwise disposed of, and it was held that the form of his suit did not preclude him from thereafter suing the sheriff and his sureties for the value of the converted property, and we do not think our original opinion subject to the construction that it is in conflict with the Webb Case. We did not hold that, because of the action of Nixon, the partners were thereby precluded from thereafter suing for the trespass. On the contrary, we distinctly held that this suit might be maintained at least for all of appellees’ wood actually converted, for the deterioration thereof, if any, and for such special damages, if any, as they may have suffered by reason of the attachment or deterioration of the property while in the hands of the officer.
We eonclude'that the motion for rehearing should be overruled, and it is so ordered.