Shirley v. Byrnes

Citations

• 34 Tex. 625

Syllabus

<p>1. A petition which explicitly states the amount of the defendant’s indebtedness to the plaintiff, is sufficient, if sworn to, to sustain an attachment, and is gppd upon general demurrer.</p> <p>2. Though one of .several count’s .in a petition was bad upon general demurrer, and a general dqpmi'rer .was not sustained as to it, yet the.error is not available when that count wi abandoned by an amended petition at the trial, so that it could not have prejudiced the delendant.</p> <p>3. A special bail bond possesses four legal attributes under the statute of this State (article 150, Paschal’s Digest) : It restores to the defendant the-possession of the-attached property ; it effects an abearance of the defendant ; when giveni, the action ceases to be a proceeding inrem, ancf proceeds as in ordinary cases ; and finally, if the- plaintiff recovers judgment, it is to be rendered against all the-obligors in the-special bail bond,</p> <p>4. By the giving of a special bail bond the attachment becomes fmctus< officio, and the attached, property is released, the- bond being substituted-, in its place ; and if the attachment was wrongfully sued out, the defendant can recover his damages by suit on the attachment bond, but not by way of reconven tion.</p> <p>5. The doctrines respecting contracts extorted by duress of property have no-application to a bond taken by an officer who- holds property by virtue of legal prosees, and takes the bond- by authority of law.</p> <p>6. After judgment rendered for the plaintiff by default, it was- not error to-overrule motions of the defendant to quash the attachment and the spe>, cial bail bond.</p> <p>7. A motion for a new trial must be made within* the time prescribed by the-statute, or the'order overruling id will not be revised by this court-</p>