Jordan v. v. & A. Meyer & Co.

39 S.W. 1081 | Tex. | 1897

In this cause the Court of Civil Appeals have certified the following explanatory statement and question:

"On December 27, 1888, V. and A. Meyer and Co. sued M. Jordan in the County Court of Bowie County on an account for $664.54, and procured the issuance of an attachment and caused it to be levied upon a stock of goods belonging to the defendant. M. Jordan reconvened in the attachment suit for the recovery of damages, upon the ground that the writ was wrongfully sued out. The cause was tried February 3, 1894, resulting in a verdict and judgment in favor of M. Jordan upon his plea in reconvention for damages. The liability of the sureties upon the attachment bond was not adjudicated in the original attachment.

"February 29, 1896, this suit was instituted upon the attachment bond, to recover of the obligors in the attachment bond the damages awarded M. Jordan in the attachment suit on account of the wrongful suing out of the attachment.

"At the time this suit upon the bond was filed, more than four years had elapsed since the seizure of the goods under the attachment, and two years and six days had elapsed since the trial of the attachment suit and the rendition of the judgment for damages in favor of M. Jordan. The attachment bond was in statutory form.

"QUESTION. Was this suit barred under the statute of limitations of four years at the time of its institution?"

The condition prescribed by statute for an attachment bond is "that the plaintiff will prosecute his suit to effect, and will pay all such damages and costs as shall be adjudged against him for wrongfully suing out such attachment." According to the certificate the suit is to recover for breach of that part of the condition that plaintiff "will pay," etc., and to that will our decision be confined. If the attachment was wrongfully sued out a cause of action against the principal and sureties on the bond "arose at the very instant the seizure was made." (Torrey Co. v. Schneider Davis, 74 Tex. 116; Weaver v. Ashcroft,50 Tex. 444; Tompkins v. Toland, 46 Tex. 584 [46 Tex. 584].) Since the sureties were not sued within four years from that date the action against them was barred, though the judgment rendered against the principal February 3, 1894, would prevent any bar as to him. (Kaufman v. Wolf,77 Tex. 255; Rev. Stats., arts. 3356 and 3358.) We therefore answer the question certified in the affirmative as to the sureties and in the negative as to the principal. While the cause of action on the bond accrues at time of the levy the measure of damages would doubtless depend upon what disposition had been made of the attached property at the time of the trial of the action upon the bond4 Texas, supra; Rev. Stats., Tit. X, ch. 1.