Haile v. Oliver

Bonner, Associate Justice. It is not necessary to consider all the questions raised in this case to arrive at a final determination of the same. "Wo will dispose of but two only: 1st. Was the replevy bond given by a proper party to make it a valid statutory bond? 2d. Was it, as such bond, conditioned as required by law ? [446] ■1st. It is a well-established rule, that a statutory bond, upon which summary judgment can be taken without notice to the sureties, should, to be valid, substantially conform to the statute. The right to give a replevy bond, by the statute regulating sequestrations, invoked in this case, is given to the parties to the suit themselves. (Paschal’s Dig., arts. 5100, 5101.) If this privilege, in a case where a tenant in possession is sued, could be extended to his landlord, who, under article 5296 of Paschal’s Digest, “may enter himself on the proceedings as the defendant in the suit, and shall be entitled to make such defense as if he had.been the original defendant in the action,” it is believed that the proper practice would permit this only by the consent, express or implied, of the tenant, and after the landlord had in some proper mode entered himself upon the record as a party to the proceedings. To hold otherwise might deprive parties of the possession of property without due course of law. "In Harris v. Shackleford, 6 Tex., 136, where the defendant died between the issuance and the levy of the execution, it was decided that his widow, who ordinarily, under our law, would be entitled to grant of administration and a share of the property, was not such party as could give a valid forthcoming bond, under the statute, upon which execution could issue. 2d. If, however, it be admitted that the bond in this case was given by a proper party, it is nevertheless invalid as a statutory bond, because not conditioned substantially as required by the statute then in force. (Paschal’s Dig., art. 5100.) Both personal and real property were levied upon; but the bond, instead of being conditioned to cover both species of property, is conditioned as required in cases of personal property only. The statute, in the same article, prescribes essentially different conditions for the two kinds of property. To decide that the conditions for one should suffice for both, would virtually set aside the very law which authorizes the execution of the bond. [447] [Opinion delivered January 27, 1880.] The judgment is reversed and cause dismissed as to the appellants who are sureties on the replevy bond. Reversed and dismissed.