Burch v. Watts

Citations

• 37 Tex. 135

Syllabus

<p>1, B. instituted suit against W. by attachment; W. replevied the attached property, giving E. and H. as sureties on his replevy bond. Subsequently, the plaintiff and defendant in attachment entered into an agreement whereby the defendant acknowledged the justness of the plaintiffs demand, and agreed that the attachment should stand. The sureties, who were not parties to this agreement, filed their plea of intervention, asking to be made parties to the suit in so far as they were liable on the replevy bond, and charged collusion between the parties to' defraud them, and prayed that the agreement be held void, the attachment quashed for certain defects, and that they be relieved from all responsibility on the replevy bond. Held, that the sureties upon the replevy bond were bound for the forthcoming of the property attached, only upon the conditions that the proceedings in the attachment were legal and proper, and that the property levied upon was subject to the attachment. The court below, therefore, did not err in allowing them to intervene to protect their rights by moving to quash the attachment.</p> <p>2. An affidavit for an attachment failed to state that the attachment was not sued out for the purpose of injuring the defendant. Held, that the affidavit was fatally defective. The statute must be strictly followed in such cases, and any material variation from the letter of the law will vitiate all subsequent proceedings.</p>