157 S.W. 458 | Tex. App. | 1913
This suit was filed in the district court of Parmer county, by appellant, to recover upon an overdraft charged against appellee by the Bank of Bovina. Writs of attachment were issued by appellant, the first being levied on 125 head of cattle, and an alias writ levied upon an undivided interest, alleged to have been held by appellee in a certain herd of cattle. After the writs were levied the cattle were sold, and the proceeds deposited in the registry of the court. Appellee moved to quash the attachment proceedings, and the court sustained the motion and ordered the money held by the clerk of the court to be turned over to appellee. Judgment was rendered in favor of appellant against appellee, for the sum of $1,802.06, being the amount of the overdraft, less certain credits. The judgment was rendered on the 29th day of May, 1911. The court adjourned for the term on the 8th day of June, 1911, and on the 9th day of June appellant filed his appeal bond. The transcript of the record was filed in the Court of Civil Appeals for the Second District on the 9th day of July, 1911, and appellee has filed a motion in this court, asking that the judgment be affirmed on certificate, or that the appeal be dismissed. It appears from the record and the indorsements thereon that the transcript, together with the statement of facts, and other filed papers, were transmitted by the clerk of the second district to the clerk of this court on the 16th day of September, 1911, and filed here by the clerk of this court on that date. It further appears that since the appeal has been prosecuted, appellant, by writ of error, has brought the case directly to this court, having filed his transcript with the clerk of this court the 22d day of July, 1912.
This court will take judicial knowledge of the fact that at the time of the filing of this record none of the acts of the Legislature at its last regular session had been published. It was generally understood by the bar that the Governor had vetoed what is known as the "Single Bill," and such impression prevailed until the Supreme Court, in Southern Pacific Co. v. Sorey,
Appellant's first, second, third, and fifth assignments are submitted together and complain of the action of the court in quashing the attachment proceedings. The substance of appellant's contention under these assignments is that the allegations of the original petition show that the appellant was plaintiff, and that he was conducting a banking business at Bovina, under the name of the "Bank of Bovina," which allegations are substantially carried forward in the amended petition, upon which the case was tried; that the attachment proceedings described appellant as the sole owner and proprietor of the Bank of Bovina. The original petition upon which the attachment proceedings were based, and which alone we must consider in determining the question submitted under these assignments, contains the following allegations: "Now at this time comes the Bank of Bovina, by and through its president and sole manager, L. T. Lester, of Canyon City, Randall county, Tex., and, complaining of Tom Riley, represents as follows: That the said bank of Bovina, hereinafter styled plaintiff, is a private banking institution, located at Bovina, in Parmer county, Tex. (being owned and controlled solely by L. T. Lester of Canyon City, Tex.), at which place the plaintiff carries on a general banking business," etc. The bond in attachment recites: "We, the undersigned, the Bank of Bovina, a firm composed of L. T. Lester, who is sole owner and proprietor, as principal, and L. C. Lair and L. E. Cowling as sureties," etc. — and is further conditioned that "the plaintiff in attachment against the said Tom Riley, defendant, will prosecute its said suit to effect and that it will pay all such damages and costs as may be adjudged against it for wrongfully suing out such attachment." The affidavit in attachment recites: "Before me, the undersigned authority, on this day personally appeared L. T. Lester, sole owner and proprietor of the Bank of Bovina, and acting for said bank, which is plaintiff in attachment," etc. The writ of attachment contains this recitation: "To satisfy the demand of the Bank of Bovina, a firm composed of L. T. Lester, who is the sole owner and proprietor, and that you keep and secure in your hands," etc. The grounds set up in the motion to quash are in substance: (1) Because it appears from the affidavit that the plaintiff to the suit was not a legal entity; that it was neither an natural nor an artificial person. (2) Because the affidavit shows that the debt therein described is not due to any legal entity. Therefore the plaintiff described in the affidavit could not maintain a suit on it. (3) Because the affidavit and bond affirmatively show that it is not the obligation of legal entity; plaintiff described therein being neither a natural nor artificial person. And (4) Because the attachment bond shows on its face that it is not a contract to indemnify the defendant, entered into by any legal entity as a principal, and, the principal not being bound, no obligation rests upon the sureties.
The trial court is apparently sustained by W. A. Ry. Co. v. Dalton Marble Works,
It is shown by the record that a part of the cattle levied upon probably belonged to third parties, and that such third parties had filed an independent suit against appellant for such levy. Appellee testified that he did not own a part of the cattle. It is therefore error for the court to order the proceeds of the sale of that portion of the cattle delivered to him. Having held that the court erred in quashing the attachment proceedings, we reform the judgment rendered below to the extent of foreclosing the attachment lien upon the proceeds of the cattle, and the judgment, as reformed, is affirmed.