Toland v. Stroud

VAUGHAN, J. This suit was instituted by appellees, Mrs. Ada Stroud and husband, Lee R. Stroud, against appellant to recover in her behalf on a liquidated demand in the principal sum of $350, together with 6 per cent, interest per annum thereon from April 26, ■ 1923. Appel-lees, at the time said suit was filed, caused to be issued a writ of attachment, which was on May 14, 1923, levied upon a tract of land located in Kaufman county, Tex. Appellant appeared in the trial court, by counsel, but the record does not contain the answer filed for appellant, if one was filed for her. On September 20, 1929, judgment was rendered on the verdict of the jury in favor of appel-lee Mrs. Ada Stroud against appellant for the sum of $485.62, with 6 per cent, interest per annum thereon from said date. This appeal is before us on the following agreed statement of facts: That when this suit was filed, April 17, 1923, appellees sued out and caused to be properly levied a writ of attachment on lands in Kaufman county, belonging to appellant; that on August 15, 1923, appellant filed with the clerk of the trial court a replevy bond for said land so attached, which bond was properly approved and duly filed in. this case,; that the attach [770] ment issued out of this cause was handed to the presiding judge while the case was being tried and the court took cognizance of same; that neither the writ of attachment; bond, nor the affidavit therefor, were introduced and read in evidence; that after the jury had been discharged, plaintiffs produced said attachment bond and affidavit and presented same to the trial judge, who took cognizance of same. Appellant, by her first assignment of error, contends that the court erred in rendering judgment, foreclosing the attachment lien, without the jury having found that a valid attachment lien existed. Writs of attachment issued out of a county court are governed by the following provisions of article 301, R. S. 1925, viz. :• ‘When an attachment issued from a county or justice court has been levied upon land, no order or decree 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.” Rentfrow v. Lancaster, 10 Tex. Civ. App. 321, 31 S. W. 229, 230 (Col. 1); Johnson et al. v. Goolsby Lbr. Co. (Tex. Civ. App.) 121 S. W. 883. Said judgment properly recites the issuance and levy of said writ of attachment and, in addition thereto, formally foreclosed the attachment lien on the real estate levied upon. This foreclosure, if erroneous, was harmless, as a compliance with the provisions of article 301 was not thereby destroyed. Johnson v. Goolsby Lbr. Co., supra. However, under the holding in Baker v. Pitluk & Meyer, 109 Tex. 237, 205 S. W. 982, said foreclosure was correct, the lien not being one of contract. The validity of the judgment is next called in question by the following assignment of error: “The court committed error in foreclosing the attachment lien against the land — and in not rendering and in failing to render judgment against the defendant on her replevy bond.” We are of opinion that this contention — real estate having been levied upon — is in irreconcilable conflict with the following provisions of the attachment statute, viz.: Article 289, R. S. 1925, “The writ of attachment shall be levied in the same manner as is, or may be, the writ of execution upon similar property.” Article 3793, Id., in part, “In order to make a levy on real estate, it shall not be necessary for the officer to go upon the ground, but it shall be sufficient for him to indorse such levy on the writ.” Article 290, Id., “When personal property is attached, the same shall remain in the hands of the officer attaching until final judgment, unless a claim be made thereto and bond be given to try the right to the same, or unless the same be replevied or be sold as provided by law.” Article 301, Id., in part, “Should the plaintiff recover in the suit, such attachment lien shall be foreclosed as in the case of other liens, and the court shall direct the proceeds of the personal property sold to be applied to the satisfaction of the judgment, and the sale of personal property remaining in the hands of the officer and of the real estate levied on, to satisfy the judgment. * * * The land so attached may be sold under execution after judgment, and the sale thereof shall vest in the purchaser all the estate of the defendant in attachment in such land, at the time of the levy of such writ of attachment.” And article 302, id., “When personal property has been levied on, as here-inbefore provided, the judgment shall also be against the defendant and his sureties on his replevy bond for the amount of the judgment, interest and costs, or for the value of the property replevied and interest, according to the terms of such replevy bond.” See also Miles v. Davis, 36 Tex. 690; Moss v. Katz & Meyer, 69 Tex. 411, 6 S. W. 764; Coopwood v. Wofford (Tex. Civ. App.) 219 S.W. 504. Both assignments are overruled. Not finding any reversible error, the judgment of the court below is affirmed. ^Affirmed.