Drake v. Brander

• Decision Date: 01 January 1852
• Citation: 8 Tex. 351
• Parties: DRAKE v. BRANDER AND OTHERS.
• Court: Texas Supreme Court

8 Tex. 351

DRAKE

v.BRANDER AND OTHERS.

Supreme Court of Texas.

1852.

Exceptions to the petition cannot be made after an issue to the contrary on the merits; all exceptions that go to the action should be presented first.

But an exception to the sufficiency of the bond given to obtain an attachment does not go to the action, and may be made after answer to the merits.

Any bond given by the members of a partnership in the prosecution of a suit is less objectionable if executed by them individually than if executed in the name of the firm under seal, because it was once held that a firm could not bind itself at common law by a seal to the name of the firm, or, in other words, that a copartnership firm could not as such make a deed at common law.

Where an act by attorney is excepted to because the power of attorney has not been filed, it is sufficient answer to file the power.

Where the party to any suit desires to obtain the testimony of the surety or sureties on his bond given for costs or other purposes, under the third section of the act of 1848 concerning proceedings in the District Court, (Hart. Dig., art. 803,) a new bond must be given covering all the requirements of the law as to the original bond, the release of one surety being a release of all; and until such new bond is given the original bond remains in force.

A plea in abatement cannot be received after an answer to the merits.

A plea of suit pending in another State on the same cause of action presents no ground in bar or abatement of an action in this State.

It is not necessary that the transcript of the record in civil cases should show that the jury were sworn; it is otherwise, however, in criminal cases.

Error from Cass.

M. D. Rogers, for plaintiff in error.

J. H. Rogers and W. P. Hill, for defendant in error.

LIPSCOMB, J.

This suit was commenced in the court below by a petition for an attachment against a non-resident debtor, in which Brander, Williams & Co. were the plaintiffs and the plaintiff in error defendant. The attachment was levied on the goods, &c., of the defendant, and a claim of property interposed, which it seems had not yet been disposed of in the court below. The defendant in the court below appeared by his counsel and interposed several matters of defense that will be noticed in the proper place. There was a judgment for the plaintiffs, and the defendant has brought it up for revision by a writ of error.

The plaintiff in error assigns the following errors:

1st. The court erred in overruling the motion to quash the attachment filed on the 31st day of September, A. D. 1848, and in overruling the defendant's motion to quash the attachment bond filed 21st March, A. D. 1850. 2d. The court erred in sustaining the plaintiff's motion to substitute new security in the place of Todd, one of the securities on the attachment bond, which motion was made 22d March, A. D. 1850, and in approving the bond given as such substitute by M. J. Hall on the same day.

3d. The court erred in sustaining the plaintiff's motion to reject the defendant's plea in abatement.

4th. The jury was not sworn.

5th. The court erred in overruling defendant's motion for a new trial.

The first specification in the first assignment will be first examined, and the second branch of the assignment will be discussed under the second assignment.

It appears from the record that the defendant in the court below appeared by his counsel at the term of the court to which process in this case was made returnable, and filed his answer, the first in order, in the words following: “And the said defendant comes by M. D. Rogers, his attorney, and defends the wrong and injury, when, &c., and saith that he did not undertake and promise in manner and form as the said plaintiff hath above complained against him, and of this he puts himself upon the country.” Here was an issue taken to be tried by the jury. Then the defendant filed exceptions to the bond given by the plaintiffs in the attachment on obtaining it. If these exceptions had gone to the plaintiffs' right of action they ought to have been overruled, as the statute giving the defendant the privilege in his answer “to 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,” has this proviso, “that he shall file them all at the same time and in due order of pleading.” (See Dig., art. 688.) To allow an exception to the action after full answer on the merits would be entirely to disregard this proviso, as in the order of pleading no exception to the action can be made after an issue to the country on the merits of the plaintiff's petition. All exceptions that would go to the action should be presented first. But this exception, under our practice, does not go to the action, and the plaintiff could still have gone on with his suit if the bond had been quashed. The most that could have been claimed by the defendant would have been a discharge from the attachment and the levy made under it. The cause of action set out in the petition would have been left unaffected by the decision on the insufficiency of the bond required by law for obtaining the auxiliary writ of attachment. The defendant had a right, therefore, to attack the sufficiency of the bond after he had answered to the merits and joined issue on the averments of the indebtedness contained in the petition.

The objection taken to the sufficiency of the bond was on several distinct grounds; it is not, however, proposed to consider them separately in the order in which they were presented; they can be condensed and presented in much narrower limits.

It was objected that the bond was not sufficient because it was not executed in the name of the firm bringing the suit, but, instead of being so executed, that it was executed under the hand of each of the members composing the firm in their individual names. There can be no question that this objection is not well taken; the security afforded by the bond executed by the individuals composing...