Osborn v. Schiffer

Walker, J. This action was commenced by attachment in The District Court. The affidavit and bond are dated on the 24th of June, 1869. The attachment was issued by the district judge; is without date, and without the seal of the court, fit came to the hands of the sheriff on the 26th of June, and was executed on the 7th of July. No petition was filed until the 26th day of July, 1869. The writ issued in violation of law, and should have been (gnashed on motion. (Article 165, Paschal’s Digest.) The bond [435] was not filed until the 26th of July, whilst the attachment was executed on the 7th of July, and was therefore issued and executed before the bond was filed. This, in the language of Judge Wheeler, is a fatal objection. (Wright v. Ragland, 18 Texas, 293.) The court erred in refusing to consider the motion to quash, on the ground that it came too late after the parties announced ready for trial. (Article 1454, Paschal’s Digest.) There was error in permitting the bond, affidavit, and petition to be filed nunc pro tunc, at the trial term; and this is one of the errors assigned. We are also of opinion that the court erred in excluding evidence, • on the plea of reconvention, showing that the defendant as a merchant had suffered by this proceeding, in the cities where he had been accustomed to buy hi£goods; and there is error in the charge of the court, “ that if they believe “ the plaintiffs’ attorney had good cause to believe that the de- “ fendant was about to remove or transfer his goods, etc., that in “ that case the attachment was rightfully sued out, and the de- “ fendant was not entitled to recover in reconvention.” There must be something more than the mere belief of an attorney, however well founded, to justify the attachment. The grounds must be actually shown to exist, or the plaintiff will be liable for a wrongful suing out of such a writ. (14 Texas, 662; 6 Texas, 407.) The judgment in this case must be reversed, and the cause remanded. Eeversed and remanded.