Pantaze v. Fox-Head Spring Beverage Co.

WILLSON, O. J. (after stating the case as above). Several errors in the judgment are “apparent upon the face of the record.” Article 1837, It. S. 1925. In the first place, it appears in the reeofd that it was by default and rendered on October 2,1928, the first day of the term of the court to which the suit was brought. The beverage company was not in any event entitled to such a judgment before the second day of that term. Articles 2152 and 2154, R. S. 1925; 34 O. J. 180; 15 R. O. L. 665. In the second place, the court undertook in it to foreclose the lien of the attachment levied on the land and to provide for the sale of the part thereof necessary to create a fund sufficient to satisfy the sum he adjudged in favor of the beverage company. It is expressly provided in the statute (article 301, R. S. 1925) that, when an attachment issued from a county court is levied upon land, “no order or decree [quoting] foreclosing the lien thereby acquired shall be necessary, but the judgment shall briefly recite the issuance and levy of such attachment, and such recital shall be sufficient to preserve such lien. The land so attached may be sold under execution after judgment, and the sale thereof shall vest in the purchaser all the éstate of the defendant in attachment in such land, at the time of the levy of such writ of attachment.” In the third place, it is for a sum $20.22 in excess of the amount warranted by the allegations in the petition. The errors in the judgment,, so far as it undertakes to foreclose the attachment lien, and so far as it is for an . excessive amount, might be cor-feeft'd'fiere, but the error in the other respect cannot be, but requires a reversal of the jud¿n>ent and a remanding of the cause to the court below for a trial on its merits. In view of such a trial, we say with reference to such of Pantaze’s contentions as are likely to arise then, that we think the trial judge did not err in holding that the beverage company could sue Pantaze in his court as it did (7 R. O. L. 1035), and did not err in holding that the account sued upon was an open one within the meaning of article 3736, R. S. 1925. 1 Texas Jur. 306.