51 Tex. 351 | Tex. | 1879
We are of opinion that the court erred, as set forth in the second assignment of error, in overruling plaintiffs’ exceptions to the pleas of intervention and reconven ti'bn filed by defendants and intervenor.
The intervenor, McMurtray, was in nowise interested in the subject-matter of the original suit, nor did the wrongful suing out of an attachment against other persons (if, as alleged, the attachment was wrongful) give him a cause of action or right to intervene. The levy in a proper manner of a valid attachment against A. H. and F. A. Steagall, on the partnership property of the Steagalls and the intervenor, was not wrongful ; though if it appeared that, on settlement of the partnership business, the prior claims of McMurtray and the creditors of the firm would absorb the entire interest of the Steagalls and leave nothing subject to levy, the enforcement of the attachment would on proper proceedings be enjoined. (De Forest v. Miller, 42 Tex., 37.; Warren v. Wallis, 42 Tex., 478; Bradford v. Johnson, 44 Tex., 383; Weaver v. Ashcroft, 50 Tex., 427.)
The plea of intervention does not purport to be in the nature of an equitable proceeding seeking to have the attachment proceedings to await the adjustment of the partnership accounts, but apparently seeks only to recover damages for the wrongful suing out and levy of the attachment.
McMurtray’s intervention was voluntary, and it was only afterwards and conditionally that any recovery was sought against him. It is unnecessary, therefore, to inquire what would have been the rule had he been sued or made a party at the instance of plaintiffs.
So it is not material to inquire whether á third party, whose property is wrongfully attached as that of another, may intervene for the purpose of its recovery, as appears to have been held in Louisiana. (Field v. Harrison, 20 La. Ann., 411.)
To uphold the plea of intervention and reconvention filed by McMurtray, would, we think, be to go beyond any au
Reversed and remanded.
