65 S.W. 180 | Tex. | 1901
In order that our ruling upon this application may be understood, we make the following statement of the case: The defendant in error sued J.R. Wallace in the District Court of Hill County to recover upon a judgment of a chancery court of the State of Tennessee, and Wallace being a nonresident, attachment was sued out and levied upon lands situated in Hill County. Wallace appeared and answered to the original suit, and three years thereafter filed a plea in abatement to the writ of attachment, charging that the sureties upon the attachment bond were not solvent for the amount of the bond. There was also a motion to quash the attachment on various grounds not necessary to notice here. The trial court quashed and abated the attachment, rendering judgment in favor of the plaintiff against Wallace for the amount of the debt. The bank appealed to the Court of Civil Appeals, which reversed the judgment of the District Court so far as it set aside the attachment and entered judgment foreclosing the attachment lien upon the land.
In refusing the writ of error, we do not approve that portion of the opinion of the Court of Civil Appeals which holds that the plea in abatement to the attachment came too late because it was filed after the plea to the merits. In Drake v. Brander,
Hart, Wiggin Co. v. Kanady,
The order of pleading in our courts is prescribed by the following article of our Revised Statutes: "Art. 1262. The defendant in his answer may plead as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause; provided, that he shall file them all at the same time, and in due order of pleading." The language plainly refers to pleading interposed by a defendant to the plaintiff's right of recovery and does not embrace motions to quash and pleas which seek to abate the writ of attachment. Pleas to the merits present no defense against the foreclosure of the writ of attachment nor in any way bring in question the validity of the proceedings by which the writ was issued. The *106 line of procedure by a defendant as to the two matters in entirely distinct and separate, and the one does not in any way depend upon the time nor order in which the other may be presented.
We are of opinion, however, that the Court of Civil Appeals was fully justified by the facts in holding that the length of time which elapsed between the appearance of the defendant in this case and the filing of the plea in abatement was so great as to constitute of itself a waiver of the alleged defect in the bond. Such objection should be presented with reasonable diligence, for a failure to do so would work many inconveniences and embarrassments in the prosecution of suits in the courts, and it must be hold that so great delay operates to bar the defendant from interposing an objection of this character. The application for writ of error is refused.
Writ of error refused.