Hart, Wiggin & Co. v. Kanady

Citations

• 33 Tex. 720

Syllabus

<p>1. A defendant, being sued in an action commenced by an attachment sued out by the plaintiffs’ attorneys, filed a general demurrer and a general denial, ard on a subsequent day filed a plea in abatement under oath, setting forth that he had notified the attorneys to produce their power of attorney, if any they had, from the plaintiffs, authorizing them to make the oath or to sign the plaintiffs’ names to the attachment bond, but they had failed and refused to produce any power of attorney, and defendant was informed that they had none; wherefore defendant alleged that the plaintiffs’ names upon the attachment bond were placed there by the attorneys without any written authority under seal from the plaintiffs, empowering the attorneys to sign the names of the plaintiffs to the bond. The court below treated this plea as a motion presenting a question of law only, and sustained it, abating the attachment. . This court is of opinion that the plea in abatement should not have been entertained after the previous pleadings to the merits; and ho’ds, at all events, that the plea tendered an issue of fact which should have been submitted to a jury, and that it was error for the court below to take it for granted, on the mere allegations of the defendant, that the plaintiffs' attorneys had no power to bind their principals.</p> <p>S. Pieas in abatement must be proved, and the burden of proof is upon the party who pleads them.</p> <p>3. This court adheres to its ruling in Reed v.-Levi, 30 Texas, 738, that attachment bonds executed under Articles M3, M8 and 163, of Paschal’s Digest, must have seals, or serawls by way^of seals, to the names of the obligors; although to appeal and writ of error bonds seals are hold not to be necessary, in Foster v. Champlin, 29 Texas, 22, and Russell v. McCampbell, 29 Texas, 37.</p>