Caldwell v. Lamkin

• Decision Date: 18 December 1895
• Citation: Caldwell v. Lamkin, 33 S.W. 316, 12 Tex. Civ. App. 29 (Tex. App. 1895)
• Parties: CALDWELL v. LAMKIN et al.
• Court: Texas Court of Appeals

33 S.W. 316

CALDWELL v. LAMKIN et al.

Court of Civil Appeals of Texas.

December 18, 1895.

Appeal from district court, Caldwell county; H. Tiechmueller, Judge.

Action on a note, aided by attachment, by S. H. Caldwell against L. A. L. Lamkin and others. From the judgment rendered, plaintiff appeals. Affirmed.

This suit was brought August 9, 1894, by the appellant, S. H. Caldwell, against appellee L. A. L. Lamkin, for $3,787.30, due by note of date April 14, 1891, executed by appellee Lamkin to Y. Q. Caldwell and S. A. Miller, as administrators of the estate of R. D. Caldwell, deceased, which note was by the administrators of the estate, for value, transferred, without recourse, to appellant, S. H. Caldwell, who sued as owner and holder. On the same day attachment was issued against Lamkin to Caldwell county, Tex., and was on the same day levied on two tracts of lands, as the property of Lamkin; and a certified copy of the attachment and return of levy was on August 9, 1894, deposited with the county clerk of Caldwell county for record, the land levied on being situated in Caldwell county. September 4, 1894, in vacation, the plaintiff amended his petition, making W. R. Johnston and F. Flournoy parties defendant, upon the alleged ground that they claimed to own the land levied on. Prayer for judgment for debt and foreclosure of attachment lien as against all the defendants. September 25, 1894, Lamkin filed an amended plea in abatement, and asked the quashal of the writ of attachment upon the ground that the sureties on the bond for attachment, to wit, A. B. Lamb and W. T. Wrather, were nonresidents of the state of Texas, and were resident citizens of the state of Tennessee, and had no property in this state, wherefore the bond furnishes no security to defendant, and is not the bond required by law. But on October 19, 1894, defendant Lamkin, by leave of the court, amended this plea, setting up the same facts, and further showing how the clerk of the state court came to approve the bond. This plea was sworn to. On the same day that the first amended plea in abatement was filed, defendant Lamkin filed a general denial, expressly premising that it was done, not waiving his plea in abatement. Defendants Johnston and Flournoy answered, each claiming one of the tracts of land levied on, and resisting the foreclosure of the attachment lien upon the grounds that they had valid debts against defendant Lamkin, which had been respectively secured by mortgages on the land, and deeds from Lamkin to their respective surveys of land, in satisfaction of their debts and mortgages. It is unnecessary, as we think, to further state the particulars of their pleas, as, according to our views of the case, plaintiff, was not entitled to a foreclosure of the attachment, because the attachment itself was properly quashed. On September 28, 1894, plaintiff filed a motion to substitute the attachment bond, tendering the bond, with good sureties, resident in the state of Texas. September 29, 1894, plaintiff filed a reply to the answer of Johnston and Flournoy, which we deem it unnecessary to notice in detail. On the same day that defendant Lamkin filed his amended plea in abatement,—October 19, 1894,—plaintiff filed a motion to strike it out upon the ground that it was filed after a plea to the merits; that there was no law requiring sureties on attachment bonds to be residents of the state; that the bond first filed was sufficient, being in form, and approved by the clerk of the court, constituting a full compliance with the statute. On October 19, 1894, the case was tried by the court without a jury, when the court overruled plaintiff's motion to substitute the attachment bond, and the motion to strike out defendant Lamkin's amended plea in abatement, sustained the plea, abated the bond, quashed the attachment, and rendered judgment for the plaintiff for the amount of his debt against Lamkin, for $3,787.30, and 6 per cent. interest per annum from April 18, 1891, and against the plaintiff and in favor of defendants Johnston and Flournoy, the plaintiff taking nothing against them, and that they recover their costs of plaintiff. Plaintiff has appealed.

S. H. Caldwell, in pro. per. McNeal, Harwood & Walsh and L. J. & A. B. Storey, for appellees.

COLLARD, J. (after stating the facts).

The first error assigned is "that the court erred in allowing defendant Lamkin to amend his plea in abatement, and file a second amended plea, after motion to strike out his first amended plea had been sustained by the court, and after he had answered to the merits, because the amendment was not authorized by law, and came too late after answer to the merits, and because, having amended the plea once, and going to trial thereon, and it having been stricken out on motion of the plaintiff, no further plea on that subject could have been legally made." The original and first amended pleas in abatement are not in the record. It seems, however, that the original plea was filed before Lamkin's original answer, as the answer commences: "Come defendant Lamkin, and, not waiving his plea in abatement, denies," etc. The order acting on the motion of plaintiff to strike out the second amended plea is in the first part of the final judgment, as follows: "On this October 19, 1894, this cause being regularly called for trial, the parties plaintiff and defendant announced ready for trial on the law in the preliminary questions. The defendant L. A. L. Lamkin having, by leave of the court, filed his second amended plea in abatement, to abate the attachment bond in this cause, for reasons set out in said plea, the plaintiff moved the court to strike out said plea, for reasons stated in said motion, which motion was by the court heard and overruled, to which action of the court plaintiff at the time, in open court, excepted. The plaintiff then, in open court, tendered a new attachment bond, signed by plaintiff, and James G. Burleson, A. R. Chew, and Eugene Clark, as sureties, by motion, asked leave of the court to substitute said new bond for and in lieu of the first and original attachment bond filed in this court, for the reasons set out in said motion to substitute, which said motion was by the court overruled, to which action of the court the plaintiff at the time, in open court, excepted. Then came L. A. L. Lamkin, and presented his second amended plea in abatement, asking the court to abate the attachment bond filed in this cause, and quash plaintiff's writ of attachment, and the affidavit of B. T. Palmer, therewith filed, for reasons set out in said plea, which plea was by the court sustained, said bond abated, and the plaintiff's attachment quashed, to which actions and rulings of the court the plaintiff at the time, in open court, excepted: (1) Because said bond being sufficient in amount, and conditioned as required by law, and signed by a sufficient number of sureties, and approved by the proper officer, said bond was a full and complete compliance with the attachment laws of this state; and there was no statutory authority for going behind and questioning the validity of an attachment bond, when said bond was prima facie good on its face. (2) Because, said bond being prima facie good, evidence was necessary to overcome its validity, and no evidence was offered by defendant in support of said plea in abatement, whereupon both parties, plaintiff and defendant, announced ready for trial on the merits of the case, a jury being waived," etc. The motion to strike out the second amended plea in abatement, among other reasons for the ruling asked, set up that it was filed after answer to the merits, and after issue joined. It does not appear, as stated in the assignment of error, that the second amended plea was filed after his first amendment had been stricken out on motion of plaintiff. It does not appear but that it was filed by leave of the court. The preceding pleas upon the same subject are not before us, and it does not appear that they were not amendable. The original evidently preceded the answer to the merits, as the answer referred to in it was not waived. Howeth v. Clark, 4 Willson, Civ. Cas. Ct. App. § 314. A defect in a plea in abatement may be cured by amendment, upon leave of the court, as any other defective plea. It may be done in the county court on appeal. If plaintiff is correct that the first amended plea was stricken out on his motion, it was not error to allow defendant to amend the plea, the rule being that when demurrer is sustained to a plea in abatement the defendant may plead over. Ritter v. Hamilton, 4 Tex. 326; McDonald v. Tinnon, 20 Tex. 245; Lodge v. Leverton, 42 Tex. 18; Rev. St. art. 1192. The amended pleading objected to was duly sworn to. There was no error in refusing to strike it out.

2. It is next insisted by plaintiff that the court erred in refusing to allow him to substitute the new bond in attachment for the original, because the first bond was valid in form and substance, sufficient in amount, conditioned as required by law, and approved by the clerk of the court, and was a full compliance with the statute of attachments, and on the objection by defendant, by his plea in abatement, that the sureties were nonresidents of the state, it was the proper practice to allow the filing of a new bond curing and meeting the objection; and this even if the first bond was not in fact good, and especially when the defect in the bond did not appear on the face of the bond questioned. The bond objected to was in form, for the proper amount, had two sureties, and was approved by the clerk of the court. In the absence of statutory authority, the old bond could not be substituted by a new one, especially as the defect in the original bond existed at the time the attachment was issued. 1 Am. & Eng. Enc. Law, 905-908; Drake, Attachm. 146; Wap. Attachm. 124, 125, 127; Whitley v. Jackson, 1 White & W. Civ. Cas. Ct. App. § 575; Winn v. Sloan, Id. ...