#### CLEVELAND v. SAN ANTONIO BUILDING & LOAN ASS’N et al.

No. 11909.

Court of Civil Appeals of Texas. San Antonio.

Jan. 19, 1948.

Rehearing Denied Feb. 16, 1949,

*225G. Woodson Morris, Harry B. Berry, San Antonio, for appellant.

Walter C. Wolff, Chas. J. Lieck, San Antonio, for appellees.

NORVELL, Justice.

This as an appeal from an order quashing a writ of garnishment. The writ was issued against San Antonio Building & Loan Association at the instance of the appellant, Exie M. Cleveland. The motion to quash was filed by Bertha Otterstetter, appellee, who was the defendant in the main suit to which the writ of garnishment was ancillary.

Two questions are presented; First, is the nature of appellant’s demand against, appellee such as will support the issuance of a writ of garnishment under Article 4076, § 2, Vernon’s Ann.Civ.Stats.? Second, may appellee’s motion to quash be considered although she has filed'no bond to replevy the impounded property?

In her petition appellant alleged that on March 29, 1946, she and appellee entered into a contract whereby appellant paid to appellee the sum of $2,000 in cash for the furniture and fixtures, business and good will of a certain rooming and,boarding house located at 1106 Broadway in the City of San Antonio, Texas.

Appellant also alleged that appellee had occupied the premises as a tenant for about six years, but that prior to March 29, 1946, the owner, of the premises had given appellee notice to quit, but that appel-lee fraudulently concealed this fact from appellant and informed her that the landlord would allow appellant to stay in the building and continue to operate the rooming and boarding house. That, however, in June of 1946 appellant at the instance of the landlord and with the approval of the rent control authorities was forced to vacate the premises. Appellant asked for a judgment rescinding the contract, offered to re-deliver the furniture and fixtures to appellee and prayed for a judgment for the return of the $2,000 paid to appellee.

That part of Article 4076 relied upon to support the garnishment reads as follows:

> “The clerks of .the district and county courts and justices of the peace may issue writs of garnishment, returnable to their respective courts, in the following cases: * * *

> “2. Where the plaintiff sues for a debt and makes affidavit that such debt is just, due 'and unpaid, and that the defendant has not within his knowledge property in his possession within this State, subject to execution, sufficient to satisfy such debt; and that the garnishment applied for is not sued out to injure either the defendant or the garnishee.”

*226Under the provision above set out, the writ is restricted to cases “where the plaintiff sues for a debt.”

Appellant pleaded a suit founded in tort, one based upon fraud and deceit. The measure of damages recoverable in such suits is often determined by the election of the plaintiff to proceed either at law or in equity. Under certain circumstances one may either affirm the contract and sue for damages or disaffirm the contract and rescind in equity. In certain cases, when a rescission is ordered, a judgment for the return of purchase money paid may be ordered in order that the status quo may be restored. The demand or claim for the return of the money is in some respects similar to an assumpsit count for money had and received. But here no cancellation of the contract has yet been effected by agreement, court decree, or otherwise, so that appellant’s demand is not a simple one for money had and received. In order to secure a cancellation or rescission appellant must prove her allegations to the effect that she has been the victim of fraud and deceit. Her suit is one founded in tort and is not one for “debt” as that term is used in said Article 4076. Jesse French Piano & Organ Co. v. Gibbon, Tex.Civ.App., 180 S.W. 1185; Welch v. Renfro, 42 Tex.Civ.App. 460, *94*S.W. 107; 20 Tex.Jur. 709, § 10. The first question above stated must be answered in the negative, that is, contrary to appellant’s contention.

We answer the second question stated in the affirmative. We hold that it was not necessary for appellee to replevy the impounded fund before filing her motion to quash. Although there seems to be a conflict of authority upon the question, we are of the opinion that the better reasoning supports the holding of the East-land Court of Civil Appeals in First National Bank of Munday v. Guinn, 57 S.W.2d 880. See also, First National Bank of Athens v. Davidson, El Paso Court of Civil Appeals, 67 S.W.2d 456.

All of appellant’s points are overruled. The judgment appealed from is affirmed.