Shirley v. Byrnes

• Decision Date: 01 January 1870
• Parties: T. M. SHIRLEY v. JOHN BYRNES.
• Court: Texas Supreme Court

34 Tex. 625

T. M. SHIRLEY

v.JOHN BYRNES.

Supreme Court of Texas.

1870.

1. A petition which explicitly states the amount of the defendant's indebtedness to the plaintiff, is sufficient, if sworn to, to sustain an attachment, and is good upon general demurrer.

2. Though one of several counts in a petition was bad upon general demurrer, and a general demurrer was not sustained as to it, yet the error is not available when that count was abandoned by an amended petition at the trial, so that it could not have prejudiced the defendant.

3. A special bail bond possesses four legal attributes under the statute of this state (art. 152, Pas. Dig.): It restores to the defendant the possession of the attached property; it effects an appearance of the defendant; when given, the action ceases to be a proceeding in rem, and proceeds as in ordinary cases, and finally, if the plaintiff recovers judgment, it is to be rendered against all the obligors in the special bail bond.

4. By the giving of a special bail bond the attachment becomes functus officio, and the attached property is released, the bond being substituted in its place; and if the attachment was wrongfully sued out, the defendant can recover his damages by suit on the attachment bond, but not by way of reconvention.

5. The doctrines respecting contracts extorted by duress of property have no application to a bond taken by an officer who holds property by virtue of legal process, and takes the bond by authority of law.

6. After judgment rendered for the plaintiff by default, it was not error to overrule motions of the defendant to quash the attachment and the special bail bond.

7. A motion for a new trial must be made within the time prescribed by the statute, or the order overruling it will not be revised by this court.

APPEAL from Falls. Tried below before the Hon. J. W. Oliver.

This action was commenced by attachment, in which the appellee was the plaintiff and the appellant the defendant. The suit was brought in March, 1870.

The plaintiff alleged in his sworn petition that the defendant was indebted to him in the sum of fifteen hundred dollars, half of which was wages stipulated to be paid him by the plaintiff for overseeing laborers and superintending work on the Waco Tap Railroad, upon which the defendant was a contractor, and the remainder consisted of similar claims for services or labor of other persons, assigned by them to the plaintiff for value, and of an account for supplies to the hands furnished by the plaintiff, and of freight bills paid by him for the defendant. No bill of particulars, however, was filed of this account for supplies and freight bills, and it was formally abandoned in an amended petition filed by the plaintiff.

As cause for the attachment, the sworn petition charged that the defendant was about to remove his property from the railroad work and beyond the limits of the county, whereby the debt might be lost, etc.

Under the attachment the sheriff seized sundry mules and other work animals, wagons, carts, harness, sutler's goods, etc., as the property of the defendant Shirley.

On the fourteenth of May, 1870, application in behalf of the plaintiff was made for an order to sell such of the attached property as was of a perishable nature; and on the nineteenth of the same month the order was granted by the district judge. But on the ensuing seventh of June, Shirley and two sureties executed their special bail bond, payable to the plaintiff in the sum of sixteen hundred dollars, conditioned for the payment of any final judgment which might be rendered against Shirley in the suit; and on this bond the sheriff released the property attached.

At the October term, 1870, the plaintiff recovered judgment by default, with writ of inquiry--the judgment being rendered against Shirley's sureties as well as himself.

Subsequently, but at the same term, a motion was made in behalf of Shirley, to set aside the default; and at a later day of the term an amended motion of similar import, and also a motion to quash the attachment, were filed. The matters mainly relied upon in these motions were in the nature of exceptions to the original petition, the attachment, and the special bail bond. One clause of the original motion claimed damages in reconvention, alleging that the attachment was wrongfully sued out. Another motion was filed, asking that the special bail bond be quashed.

All of these motions were overruled, and on the twenty-eighth of October, 1870, the writ of inquiry was executed and judgment final rendered for some $1,200 in favor of the plaintiff.

On the first of November, a motion for a new trial was made and overruled; and the defendants gave notice of appeal. The questions of practice discussed in this court are important, and have but rarely arisen for decision in the reported cases; and therefore a fuller report of this case is given than would otherwise appear to be called for.

W. B. Forde, for appellant. Here is a singular catalogue of error.

I. The original petition sets up no cause of action. Mims v. Mitchell, 1 Tex. 444;Caldwell v. Haley, 3 Tex. 318;4 Tex. 151;29 Tex. 122, 201. Conclusions of law are not sufficient. 13 Tex. 38;24 Tex. 158, 160;22 Tex. 112, 610.

First count. Does not show services performed, or breach of contract and damages, or how, or for what, or that defendant was in debt to plaintiff $750.

Second count. Connected with no promise or breach of contract, does not show with whom contract was made, but “in same manner,” i. e., by contract, no parties, time or amount--“same kind of services,” not for whom, when or where; ““services transferred to plaintiff,” ergo, defendant must pay him.

Third count. No contract or services rendered nor quantum meruit, does not show for whom or who was bound to pay. Legal conclusion that something is “due by Shirley to Pat. Malone,” must be shown to be true by allegations of facts.

The last count was abandoned by amended petition. No authorities are necessary to prove that this is not a petition.

II. Amendment cannot cure the defects, because filed after the beginning of the term, not served on defendant, and as he had no service of the original, is itself a ground for new trial, as it, for the first time, sets out a cause of action, abandoning one count and adding time and amount to the first. 16 Tex. 594;22 Tex. 109.

III. No citation was ever served or issued on the original or amended petition, and judgment by default and final on writ of inquiry, are nullities. Not necessary to except where there is no petition, or where there is no service. 25 Tex. S. 310; 4 Tex. 313. It is contended that a perfect suit is made out of this by the power of a special bail bond, given by the defendant in the auxiliary proceeding of attachment; that the auxiliary has become the principal, and the suit for the recovery of the debt, a mere incident.

But there was no attachment; and if one, it was a nullity.

First. To authorize or to make an attachment, there must be a petition at least good on general demurrer, and its material allegations must be sworn to. Pas. Dig. art. 138; Cordova v. Priestly, 4 Tex. 257.

Second. An affidavit to one of the grounds of attachment and amount claimed. The petition is here (the affidavit, if there is any for the jurat is not intelligible), and states neither of the causes for attachment. In the first part it claims $1,500, in the last $1,535. If there is anything well settled it is that the affidavit cannot be amended. In this case the plaintiff seeks by his amendment, by relation back, to supply the original petition and affidavit. As to affidavits, Drake, Attachments, § 85 et seq.

Third. A bond. There is none in this case. There is a bond among the papers, entitled in a cause of John Byron et al. v. Thomas M. Shirley, and without number. It has not the style of this case; it is not for double $1,535, the amount claimed in the affidavit; it is approved by the sheriff, not by the clerk, and bears no evidence of ever being filed in this cause. Pas. Dig. art. 145, provides “that upon such affidavit and bond being filed, etc., attachment may issue.” Article 1445 provides “that no paper shall be considered as filed in the proceedings of any cause,” until so indorsed by the clerk. The great importance of this is obvious in this case. The defendant may have inspected the files. And these references apply as well to the special bail bond. In Wright v. Rayland, 18 Tex. 292, the filing by indorsement of clerk is solely relied upon.

Fourth. A writ, and must have the seal of the court. The writ placed in the sheriff's hands on the twenty-ninth, levied and returned, had none. Another writ, issued without authority, placed in the hands of the sheriff on the thirtieth, levied and returned, had the seal affixed, but return defective, in not showing whose property levied on. 25 Tex. 31.

The decision in Kennedy v. Morrison, 31 Tex. 207, was not before the district court. In this, as in that case, it was a question whether the bail bond waived errors. It is considered that the question is settled, for in that case the court inquired into the validity of the attachment, and pronounced it valid.

It may be said that the errors here could only be reached by motion or plea; but there was a motion upon every available ground, though filed after judgment by default. If our views are correct, the court erred in rendering that judgment. If correctly rendered, it was for want of answer. Motion to quash auxiliary proceeding is not an answer, and if pending when such judgment is rendered, may be considered afterwards, and if considered, may be filed then. Article 147, Pas. Dig., limits no time for such motion. It may be made after answer to the merits. 8 Tex. 351.

An objection of nullity may be taken at any time, and by any person. 9 Tex. 353;11 Tex. 17. Is the attachment proceeding a nullity? In every step, and the judgments of the courts as well as the text is: “A thing is...