We devoted much time to the examination of the questions presented in the motions for rehearing in this case when it was under investigation, and we have again carefully examined the various assignments and find no error in our former opinion upon the points presented in the motion of John M. Avery, and it is therefore overruled. We do not feel called upon to discuss those questions further.
In our former opinion, the judgments of the District Court, which quashed the writs of sequestration issued in the original suits, were treated as subsisting and correct orders because they had not been set aside by the action of the Court of Civil Appeals. Upon further consideration of the matter as presented in the motion of I. Popper Bro. and R.R. Neyland, we conclude that we were in error in so holding. It is the practice of this court not to reverse a judgment of the District Court or of the Court of Civil Appeals, if, upon the whole case as presented, the judgment is right, although an erroneous reason may be assigned for entering it. Applying this rule, we have examined the motions made to quash the several writs of sequestration, and conclude that the District Court erred in quashing them; the judgment sustaining the motions is reversed. The ground upon which the court acted, as stated by the defendant in error, which is not denied by plaintiff, was that the suits instituted by each of the appellants separately were brought without authority of law, and that the proceedings under them prior to the consolidation were void. We have held that they were not void but irregular, from which the conclusion must be reached that the writs of sequestration were valid. *Page 345
The other grounds assigned in the motion of I. Popper Bro. and R.R. Neyland are overruled.
If Popper Bro. and R.R. Neyland had joined originally in the one suit, each one would have prosecuted it for the amount of money due to such party, and if the writs of sequestration had been sued out in such joint suit by the owners of the note, they must have been separate proceedings by each, because one of the parties could not be required to swear to the debt due to the other nor to give bond for damages caused by the prosecution of that claim. It follows that the costs which accrued from suing out the writs of sequestration must have been incurred if the suit had been brought jointly in the first instance by the owners of the note. The judgment of this court is erroneous in charging against I. Popper Bro. and R.R. Neyland the costs which were occasioned by suing out and executing the writ of sequestration in one of these cases. It is therefore ordered that the judgment heretofore entered in this cause be set aside, and that judgment be now entered that I. Popper and E. Popper, composing the firm of I. Popper Bro., and R.R. Neyland, composing the firm of R. R. Neyland Co., recover of J.M. Avery and the sureties on his replevy bond, Charles C. Cobb and H.I. Phillips, the sum of $850, with 6 per cent interest per annum from November 23, 1897, with all costs which accrued in the District Court in cause number 3406, entitled I. Popper Bro. v. J. H. and M. E. Cooke et al., and all costs which accrued in the consolidated case; also all costs which were occasioned by suing out and executing the writ of sequestration in case number 3407, styled R.R. Neyland v. J. H. and M. E. Cooke et al., and that the said I. Popper and E. Popper and R.R. Neyland pay all other costs accruing in number 3407 prior to the consolidation of the said causes, except cost of the sequestration, and that the said I. Popper and E. Popper and R.R. Neyland pay all costs in this court and in the Court of Civil Appeals. The sum adjudged against J.M. Avery will be divided between I. Popper Bro. and R.R. Neyland in the proportion of their judgments against J.H. Cooke in the District Court, and, when collected, to be credited upon those judgments.
Opinion delivered January 30, 1899.
ON MOTION FOR REHEARING. The motion of J.M. Avery, C.C. Cobb, and H.I. Phillips for rehearing is overruled, and they are adjudged to pay the cost of this motion. It appearing that an error was committed by this court in its last judgment in adjudging the costs of the Court of Civil Appeals against I. Popper Bro. and R.R. Neyland, it is ordered that said judgment be so reformed that the costs of the Court of Civil Appeals be adjudged against J.M. Avery, C.C. Cobb, and H.I. Phillips.
Reformed and rendered.
Opinion delivered March 23, 1897. *Page 346