Rino v. Parrish

• Decision Date: 04 June 1910
• Citation: 130 S.W. 611
• Parties: RINO v. PARRISH.
• Court: Texas Court of Appeals

130 S.W. 611

RINO v. PARRISH.

Court of Civil Appeals of Texas.

June 4, 1910.

Appeal from District Court, Eastland County; Thos. L. Blanton, Judge.

Action by Mrs. M. E. Parrish against C. O. Rino. From a judgment for plaintiff, defendant appeals. Reversed and rendered in part, and affirmed in part.

Earl Conner, for appellant. J. R. Stubblefield, for appellee.

DUNKLIN, J.

Mrs. M. E. Parrish recovered a judgment against C. O. Rino for $664.25, with foreclosure of attachment lien on property belonging to the defendant, and the only errors assigned by the defendant on this appeal relate to the decree of foreclosure.

The bond filed by Mrs. Parrish for the issuance of the writ of attachment was conditioned "that she will pay all damages and cost as shall be adjudged against ____ for wrongfully suing out such attachment." Sayles' Ann. Civ. St. 1897, art. 190, reads: "Before the issuance of any writ of attachment the plaintiff must execute a bond, with two or more good and sufficient sureties, payable to the defendant, in a sum not less than double the debt sworn to be due, conditioned that the plaintiff will prosecute his suit to effect, and will pay all such damages and costs as shall be adjudged against him for wrongfully suing out such attachment." The sureties who signed the bond could not be held liable thereon, because the blank left after the word "against" in the terms of the bond quoted above rendered the obligation meaningless, and the omission was therefore fatal. Winn v. Sloan, 1 White & W. Civ. Cas. Ct. App. § 1103; Solinskey v. Young, 4 Willson, Civ. Cas. Ct. App. § 269, 17 S. W. 1084; City Nat. Bank v. Flippen, 66 Tex. 610, 1 S. W. 897; Evans v. Tucker, 59 Tex. 249.

In the case of City Nat. Bank v. Flippen, supra, the word "is" was omitted from an affidavit for attachment, leaving it to read, "M. V. Flippen justly indebted to plaintiff," instead of "M. V. Flippen is justly indebted to plaintiff." On account of this defect in the affidavit our Supreme Court held that the writ of attachment issued thereon was void, and in discussing the omission said: "Because the word is necessary, are we to presume that it was intended to be used? In attachment cases we cannot indulge in presumptions to supply a defect which, if not supplied, prevents the affidavit from coming up to the requirements of the statute. The utmost latitude allowed in this respect is to exact only a substantial compliance with the law, or the use of language which...