ON MOTION FOR REHEARING
Opinion filed October 21, 1908.
The original opinion holds that the sureties, Waples and Gunter, are entitled to make the objection that the judgment for damages was not rendered against Mrs. Wandelohr. This proposition is correct and we have concluded that proper effect was not given to it in the disposition made of the case. It is true, as we held, that in such a proceeding judgment may properly be rendered upon a replevy bond to which the names of two persons are signed as principal obligors, against only one of them and against the sureties, when the other principal by reason of coverture is not legally bound. (Shipman v. Allee, 29 Texas, 17.) In such a case those only who are legally liable upon the bond are, in the true sense, obligors therein so as to fall within the statutory provision relied on by plaintiffs in error. And it may also be true that the decision of the trial court, for such a reason, that the discharged principal was not bpund, would be conclusive on the sureties in any proceeding but an appellate one; but that proposition is not essential to this decision. This is an appellate proceeding, in which the holding of the trial court, that Mrs. Wandelohr was not liable on the bond, is assigned as an error committed against the sureties, and the question as to the correctness of that ruling is properly raised and must be decided in order to determine whether or not the judgment against the sureties is correct. If Mrs. Wandelohr was liable for the damages adjudged to the defendant in error, she was an obligor in the bond in the sense of the statute, and judgment against her was essential to a correct judgment against the sureties.
On reconsideration no doubt is entertained that the trial court *28erred in holding that Mrs. Wandelohr was not liable. (Chapman v. Allen, 15 Texas, 285; Ryan v. Ryan, 61 Texas, 473; Cayce v. Powell, 20 Texas, 768.)
The fact that the husband is joined in an action can not justly be held to affect the power ’ of the wife to execute such a bond or not as she or the two together may deem essential to the proper prosecution of her claims to the property involved. The statute authorizes the joinder, and when such a suit is prosecuted against husband and wife and property claimed by her is taken from the possession of both by sequestration, she is a defendant to whom the right to replevy is expressly given. Mor does the fact that the property may go back into the possession of the husband and that he may be entitled to receive the rents and profits while it is held under the replevy bond at. all limit the right given to her by the statute. As is well argued by counsel, she has the right to execute the bond that the property may be restored to the custody and management in which the law places it; and there is no doubt in our minds that she may execute it jointly with her husband in a suit against both, as this one was, because the power results from the statute as an incident to her capacity to sue and be sued in the courts in respect of her separate property. Her power to give such obligations must be exercised at the commencement or during the pendency of the action, and, hence, can not be made to depend upon the finál decision as to - her title involved in the cause, for that would defeat the purpose of the bond, since, upon such a theory, it would be held valid in case of her success, which would in itself relieve her of liability, and invalid in case of her failure to maintain her title, the very case in which the bond is intended as a security to the opposite party. Her presence as a party in litigation about, property claimed in her separate right constitutes the condition of things in which she is entitled to follow the procedure provided for litigants generally in like cases. It "follows that the District Court should have rendered judgment against Mrs. Wandelohr for the damages found by the jury, and we think it also true that the failure to do so was error which entitles the sureties to a reversal.
It is unnecessary to determine whether or not a separate action could be maintained on the joint and several bond against Wandelohr and against Waples and Gunter, as being severally his sureties as well as jointly the sureties of himself and Mrs. Wandelohr. That proposition does not decide this case. Such a suit, if maintainable, would leave unimpaired the rights and remedies of both the obligee and of the sureties against the principal not sued. Here, under a statute requiring a judgment against all the obligors liable in the bond, and where all are parties, judgment is taken against one of the principals only, which has the effect of adjudicating that the other is not liable.
This was an error against the sureties as well as against the obligee in the bond. The latter has caused the judgment to be affirmed as between it and Mrs. Wandelohr, while the former, unaffected by that affirmance, are now complaining of the error. Following Sartain v. Hamilton, 14 Texas, 348, we must reverse the *29judgment against the sureties and adjudge that the defendant in error, the bank, take nothing against them. Otherwise the judgment is affirmed.
Affirmed in part, reversed and rendered in part.