34 Tex. 625 | Tex. | 1871
This was an action commenced by attachment, March 29, 1870.
The questions arising in the case are treated with unusual ability. They are such as arise under the attachment laws, and are all referable to adjudicated cases.
The petition set out a , good cause of action, which could not have been taken advantage of on general demurrer. (See Kennedy v. Morrison, 31 Texas, 207; Williams v. Warnell, 28 Texas, 523; Stiles v. Giddings, 21 Texas, 783, and Black v. Drury, 24 Texas, 289.)
If the petition explicitly sets forth the amount of the indebtedness of the defendant, and be sworn to by the plaintiff, it is sufficient. It is urged that the last count in the petition was bad. Perhaps it was, but the defendant suffered no wrong by it, as it was abandoned on the trial. Under the statute a special bail bond possesses four legal attributes: It restores the possession of the property attached to the defendant; it effects an. appearance of the defendant; when it is given, the action ceases to be a proceeding in rem, and is proceeded in as in ordinary cases; and if the plaintiff recovers judgment, it goes against all the obligors in the bond. The attachment is now functus officio. The attached property is released, and the bond is substituted in its place; and if the attachment proceedings have been wrongly sued out, the defendant has his remedy upon the attachment bond, and not by reconvention.
After the judgment by default, all motions to quash the attachment and bail bond were properly overruled by the court.
The motion for a new trial came too late. (Paschal’s Digest, article 1473; Warner v. Bailey, 7 Texas, 520.)
We discover no errors in the record on which to reverse the judgment. It is therefore affirmed.
Affirmed.