227 S.W. 538 | Tex. App. | 1921
C. D. Little and C. E. Speyers, a partnership, under the firm name of Little Speyers, sued Fred N. Lundy, on four checks, given by appellant, aggregating the sum of $400.13, together with protest fees on two of the checks, $9.18. The appelles alleged they were the owners and holders of the checks in due course of trade, and that the checks were presented to the bank upon which they were drawn for payment in due course of banking, and were refused payment, and the amount charged back to the plaintiff's account by the forwarding banks. The appellee answered only by exceptions to the petition. A writ of attachment was sued out and issued upon affidavit and bond therefor. The writ was levied on certain personal property. Upon hearing judgment was entered for the amount sued for, with foreclosure of the attachment lien, and upon the replevy bond executed by appellant under the statute.
The first assignment is that the original petition was not verified. Under our statutes at this time this was not required, and in fact there was no exception to that effect presented to the trial court or acted upon by him. This had the effect of waiving *539 the necessity of verification if it had been required.
The second assignment is that the cost bond was insufficient and irregular, since none of the signers are residents of the county where the suit was filed, and that one of the signers, R. L. Correll, is attorney for the plaintiffs. We find no cost bond in the record as such. This, however, would not render the judgment for the amount sued for invalid. It would make no difference whether a cost bond was executed or not, unless one had been demanded in the court below and refused by the plaintiff. We presume, however, appellant refers to the attachment bond. There is nothing on the face of the bond to show that the sureties were nonresidents or an attorney. There was no proof aliunde the bond that such was the fact. It is the rule in this state, where the sufficiency of the sureties is attacked, if there is no testimony aliunde the bond, their sufficiency will be presumed. This defect cannot be taken upon motion to quash, but must be by a plea in abatement. City Nat. Bank v. Cupp,
An attachment bond signed by an attorney does not render the bond void or voidable, as our rule which prohibits attorneys from becoming sureties without leave of the court is only directory. Kohn v. Washer,
The third assignment assails the affidavit on the ground that it was signed by Little only without referring to him as a member of the firm, or in any way showing his authority to make the affidavit; and, further, that the affidavit was acknowledged (sworn to before) by R. L. Correll, a notary public. Since Correll was attorney for the plaintiffs, the acknowledgment was irregular. The affidavit for the attachment describes Little as one of the plaintiffs in attachment, and a member of the firm of Little Speyers, a partnership. It is sufficient to describe Little as one of the plaintiffs (a partnership) suing without swearing that he is one. The affidavit, on its face, shows authority of the affiant to make the oath. Evans v. Lawson,
None of the grounds assigned were made in the motion to quash in the trial. The exceptions to the petition were not made in the county court or any record showing that they were acted upon in that court. These assignments are noticed because the appellee asked for an affirmance with damages for delay. This calls in question the entire record. There is no evidence brought up in the record, but the judgment shows it was rendered upon evidence. We can see no reasonable ground for this appeal, unless it be for delay. There is no assignment briefed on a ground upon which the trial court was called upon to act. It is very questionable whether the assignments filed can be considered as a brief, and we believe we should allow 10 per cent. damages for delay. Article 1629, R.C.S.; Weinman v. Spencer,
The judgment will therefore be affirmed, with 10 per cent. damages for delay.
