Texas Supreme Court, 1894

Martin v. C. D. Hartnett & Co.

Texas Supreme Court · Decided May 14, 1894 · Gaines

26 S.W. 945; 86 Tex. 674; 1894 Tex. LEXIS 442 (South Western Reporter)

Counsel

Stanley, Spoontz Meek, for plaintiffs in error. — The law in force when this judgment was rendered, January 5, 1892, in effect provides, that the judgment must fix the amount of plaintiff's demand, and provides that it may be discharged by the return of the property in ten days, after which execution may issue for the amount of plaintiff's debt. Rev. Stats., art. 4843, amended April 2, July 4, 1887, Acts 20th Leg., p. 104; Rev. Stats., art. 4845. T.D. Storer, R.P. Baker, and I.W. Stephens, for defendants in error. The Revised Statutes, article 4843, as amended, only requires the court to fix and state the amount of plaintiff's demand where there are more than one attachment levied on the same property. Where there is only one attachment, there can be but one demand, and it is sufficient for the court to ascertain and render judgment for the amount of that demand, without specifying it, eo nomine, as plaintiff's demand; and when this amount exceeds the bond, then judgment should be rendered for the amount of said bond. Rev. Stats., art. 4843, as amended; Bank v. Bates, 76 Tex. 329 ; Wrought Iron Range Co. v. Brooker, 2 Willson's C. C., secs. 231, 225; Garrity v. Thompson, 67 Tex. 4 ; Torrey v. Cameron, 73 Tex. 583 ; Graves v. Cameron, 77 Tex. 273 .

Opinion of the Court

GAINES, Associate Justice.

—In answer to the question certified for our determination in this case, we say, that we are of the opinion that if the record before the Court of Civil Appeals disclosed the amount claimed in the writ of attachment, that court should so reform the judgment as to show such amount in accordance with the statute; but that since the transcript does not show that sum, the judgment should be reversed and the cause remanded, with instructions to the trial court to render judgment upon the default as heretofore rendered, and in addition thereto to fix in such judgment the amount of the claim of the plaintiffs in the attachment.

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